ALEXANDER A. GLOVICH, JR v. JENNIFER SLAIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALEXANDER A. GLOVICH, JR.,

Plaintiff-Appellant,

v.

JENNIFER SLAIGHT,

f/k/a JENNIFER GLOVICH,

Defendant-Respondent.

December 21, 2016

Before Judges Yannotti, Fasciale, and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-147-12.

James D. O'Kelly argued the cause for appellant (O'Kelly & Ruby, L.L.P., attorneys; Mr. O'Kelly, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Alexander Glovich, Jr. appeals from two provisions of a June 29, 2015 order entered post-judgment in a matrimonial action. Specifically, plaintiff objects to paragraph two of the order, where the Family Part denied his request to hold defendant, Jennifer Slaight, who is his former wife, accountable for failure to deliver certain items of his personal property, and paragraph six, where the court denied his request to hold his former wife accountable for alleged damages to the marital home. We remand for a plenary hearing because there were material factual disputes concerning plaintiff's claims for damages.

The parties were married in April 2002, and divorced eleven years later on April 8, 2013. One child was born of the marriage, a girl, who was born in July 2005. At the time of the divorce, the parties entered into a matrimonial settlement agreement (MSA), which addressed the dissolution of their marriage, including issues related to equitable distribution.

The MSA provided that the marital home would be transferred to plaintiff provided that he could refinance the two mortgages on the home. Since defendant had been in sole possession of the home during a portion of the divorce litigation, the MSA also provided that defendant would vacate the home by August 31, 2013, and thereafter plaintiff would have exclusive possession of the home.

In that regard, the MSA stated

The parties agree that the issue of any damage that may have been caused or allowed to occur while wife resided in the marital home during the divorce litigation shall be the subject of a post-judgment motion if the parties cannot resolve that issue between themselves. Any such claims shall survive the judgment of divorce. Wife acknowledges that shortly before the execution of this agreement that husband[,] pursuant to court order[,] took a video of the entirety of the marital home that details the condition at that time. The parties also agree that within [ten] days of the date of this agreement that [Servpro] of Freehold shall enter the marital home and inspect it entirely and provide both parties with an estimate of any remediation that they view as necessary due to damage allegedly caused by the pets that wife had in the home during the course of this litigation. Wife shall permit [Servpro] access to every portion of the home. As set forth above, if the parties cannot work out a resolution with regard to the responsibility of the cost for any possible remediation[,] then the Court shall decide that issue, as well as any issues concerning alleged damage to the home by way of post-judgment motions.

With regard to personal property, the MSA stated that each party was to retain his or her own personal property. The parties also prepared and attached to the MSA a list of the personal property they would each retain. In addition, the MSA provided that certain personal property at the home would remain with the home and become the property of plaintiff when he took possession of the home.

In August 2013, after the MSA had been executed and the judgment of divorce had been entered, defendant filed a motion requesting that she be allowed to remain at the marital home until the proceeds of a loan were distributed. Thus, defendant remained in sole possession of the marital home until August 15, 2014, when she left and plaintiff took possession of the home.

Just before she left the marital home, on August 4, 2014, defendant filed a motion seeking to resolve a number of issues related to the parties' daughter and child support. On August 21, 2014, plaintiff cross-moved seeking, among other relief, an order directing defendant to return certain of his personal property and for defendant to pay for damages she allegedly caused to the marital home while it was in her possession. In his motion papers, plaintiff requested that the court conduct a plenary hearing to address his claims for damages.

On December 22, 2014, the trial court entered an order denying portions of plaintiff's motion without prejudice stating that plaintiff had failed to provide proofs of damage to the home or monetary damage that he may have suffered related to the personal property.

In May 2015, plaintiff filed another motion seeking, among other relief, reimbursement for damages to the marital home and reimbursement for personal property that was not returned to him. Plaintiff did not request a plenary hearing in his initial motion papers, but in his reply papers and at oral argument he did iterate his request for a plenary hearing. Defendant opposed the motion and filed a cross-motion.

In support of his motion, plaintiff filed a certification stating that defendant had kept multiple pets in the marital home and that the pets had caused extensive damage to the home. He also certified that defendant had taken or destroyed personal property that, under the MSA, should have been left at the home as his personal property. Plaintiff also certified that on the day that he took possession of the marital home -- that was, August 15, 2014 -- he inspected the home and took photographs and a video showing the damages to the home. Plaintiff submitted copies of the photographs as part of his motion. Plaintiff also attached a list of items that he alleged were missing and he attached an invoice showing that he had paid over $6000 to repair the damages to the home.

In opposition, defendant filed a certification denying that she had caused the damages, and contending that any alleged damage was either the result of normal wear and tear or was a fabrication. She also certified that certain of the damages were caused by prior hurricanes and that plaintiff had been reimbursed for that storm-related damage.

The Family Part heard oral argument on the motion and cross-motion in June 2015, but did not conduct a plenary hearing. On June 29, 2015, the Family Part entered an order denying plaintiff's motion to hold defendant accountable for damages to the marital home and for the alleged loss of his personal property. The court filed a written opinion explaining the reasons for its ruling.

With regard to the alleged damage to the marital home, the Family Part reasoned that the MSA provided that Servpro was to come to the marital home within ten days after the signing of the MSA, which would have been in April 2013. Servpro did not, however, actually inspect the home until October 2014. Thus, the Family Part reasoned that it could not determine that the alleged damage to the home was solely caused by, or even partially caused by, defendant. With regard to plaintiff's allegations about missing personal property, the court reasoned that plaintiff's proofs were insufficient and that he had not demonstrated that he had made efforts to retrieve his personal property within a reasonable amount of time.

Plaintiff now appeals the provisions of the June 29, 2015 order that denied his request for damages related to the marital home and his personal property. On appeal, plaintiff makes four arguments: (1) there were material factual disputes and the court should have conducted a plenary hearing; (2) the provision in the MSA addressing the inspection by Servpro was ambiguous and the court erred in construing that provision against plaintiff; (3) the court erred in failing to distinguish between damage caused to the marital home by plaintiff and damage caused to the marital home by the pets; and (4) the court's denial of reimbursement to plaintiff constituted a windfall to defendant, and was "inherently unfair and inequitable." Defendant failed to file a timely responsive brief on this appeal and, thus, we have no opposition from her.

We will first address whether the Family Part should have granted a plenary hearing. When there is a genuine dispute of material fact, and evidence beyond the motion papers is necessary for a resolution, the trial court cannot resolve the issue without a plenary hearing. See K.A.F. v. D.L.M., 437 N.J. Super. 123, 137-38 (App. Div. 2014). "[A] court may not make credibility determinations or resolve genuine factual issues based on conflicting affidavits." Ibid. (citing Conforti v. Guliadis, 245 N.J. Super. 561, 565-66 (App. Div. 1991), aff'd in part and modified in part on other grounds, 128 N.J. 318 (1992)). Here, plaintiff and defendant submitted conflicting certifications regarding plaintiff's requests for damages. Plaintiff stated that defendant and the pets had caused damage to the home during the period of defendant's exclusive possession. Additionally, plaintiff stated that defendant had damaged or failed to return certain property that was his or was to remain in the home under the MSA. In opposition, defendant stated that any damage plaintiff was alleging was either fabricated or was damage for which he had already been reimbursed. These conflicting averments were central to the issues presented and required findings of fact.

The Family Part also reasoned that the lack of a timely Servpro inspection, as required under the MSA, made it impossible to determine if defendant had caused the damage to the home. The current record does not support that conclusion. Plaintiff submitted photographs along with his motion establishing the condition of the house at the time defendant vacated. By conducting a plenary hearing the court will be able to make credibility determinations and potentially gain clarity regarding the condition of the home at the various relevant times.

The Family Part also failed to address any distinction between damage that may have been caused by defendant directly, and damage that may have been caused by the pets that were kept in the home by defendant. The MSA appears to contemplate such a distinction. As we are remanding for a plenary hearing, this issue can be addressed on a more complete record.

The same is true of the allegedly damaged or missing personal property. The Family Part reasoned that plaintiff had failed to demonstrate that he made efforts to retrieve his property within a reasonable amount of time. A more complete record is needed to determine what, if any, of plaintiff's property was damaged or taken, and what efforts, if any, were made to retrieve it. Regarding the property that was to remain in the home, plaintiff did not have possession of that property until he took possession of the home. Thus, the current record does not establish when plaintiff became aware that the property was damaged or missing.

The remainder of plaintiff's arguments should be addressed by the Family Part on a more complete record following a plenary hearing.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.