DESHAWN COLLINS v. CHARLENE COLLINS

NOT FOR PUBLICATION WITHOUT THE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

DESHAWN COLLINS,

Plaintiff-Respondent,

v.

CHARLENE COLLINS,

Defendant-Appellant.

________________________________________________________________

December 2, 2016

Submitted October 25, 2016 Decided

Before Judges Rothstadt and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1811-12.

Charlene Collins, appellant pro se.

Respondent Deshawn Collins has not filed a brief.

PER CURIAM

Defendant Charlene Collins appeals from the Family Part's July 28, 2015 order enforcing her and her former husband's, plaintiff Deshawn Collins, earlier agreement for defendant to either refinance the former marital home or cooperate in its sale. The court's order required defendant to comply with the realtor's suggestions for selling the home, granted a power of attorney to plaintiff to execute documents related to a sale or, if necessary, execution of a deed in lieu of foreclosure on defendant's behalf, and awarded plaintiff counsel fees, finding defendant acted in bad faith. On appeal, defendant contends the court applied an "incorrect legal standard" because its order modified an earlier order regarding equitable distribution, it failed to make adequate findings of fact and conclusions of law, and the court abused its discretion in awarding legal fees.

We have considered defendant's arguments in light of our review of the record. We affirm.

Plaintiff and defendant were married on November 24, 2001, and divorced on June 13, 2013. There was one child born of the marriage.

Prior to their divorce, the parties entered into a 2011 consent order in a summary support action, signed by Judge Francis J. Vernoia, in which they agreed that defendant was to secure a modification to the parties' mortgage, removing plaintiff from the obligation, in exchange for his execution of a quitclaim deed in her favor. By 2013, defendant had not complied with that order. As a result, in May 2013, Judge Lisa P. Thornton ordered that the former marital home be sold if defendant did not have plaintiff removed from the mortgage obligation within thirty days.

The next month, on June 13, 2013, Judge Thornton entered the parties' final judgment of divorce that incorporated their marital settlement agreement (MSA). The MSA settled issues relating to alimony, child support, custody, and equitable distribution, except for the former marital home, which the parties agreed to leave up to the court to decide. As a result, Judge Thornton ordered that the home be refinanced in defendant's name alone or listed for sale, consistent with the court's order the previous month. The June 2013 order provided "(1) Defendant has until July 31, 2013 to refinance the former marital home in her name alone[; and] (2) If Defendant fails to refinance the home in her name alone by July 31, 2013, it shall be listed for sale. Both parties shall cooperate with marketing and sale."

Defendant never complied with the court's orders through the date of the order under appeal. Instead, she took repeated actions in order to avoid complying with refinancing or selling the home. As a result, on October 24, 2014, Judge James J. McGann ordered that (1) on or before November 7, 2014, defendant shall deliver to plaintiff all documentation confirming the balance and terms of the mortgage loan, and (2) within fourteen days, defendant shall submit proof that she has refinanced the former marital home or submit a signed listing agreement for the sale of the property. Defendant did not comply.

In June 2015, plaintiff applied to the court for various relief regarding custody and the sale of the former marital home. In that application, plaintiff again sought to have his name removed from the mortgage and deed, and also sought enforcement of the previous orders requiring defendant's compliance in the marketing and sale of the home. Once again, defendant did not comply.

On July 28, 2015, Judge McGann entered the order now under appeal after issuing an oral statement of his findings of fact and conclusions of law. The judge relied on the history of the matter and a current certification from a realtor outlining the realtor's problems with defendant's lack of cooperation in selling the home, finding the statements were "unchallenged" by defendant. He observed that a letter defendant presented from the parties' mortgage service provider, which stated that her file was under review for removing her husband's name from the mortgage, "might have been acceptable two years ago, but at this point in time it's just not enough." Judge McGann also found "there [was] bad faith here on the part of the defendant" in not listing and cooperating with the sale of the former marital home.

The judge entered an order granting plaintiff relief based on the reasons he placed on the record. Defendant filed this appeal from the court's order.

After defendant filed her appeal, Judge McGann issued a written amplification of his decision,1 in which he detailed his reasons for giving plaintiff a power of attorney and granting plaintiff's request for attorney's fees. In his amplification, Judge McGann summarized the entire case from the entry of the December 21, 2011 consent order through the July 28, 2015 order and noted defendant's allusions to attempts to refinance the former marital home or assume the mortgage in her name alone, but found "the record was bereft of any proof of same." Judge McGann explained that after the more than three years since the December 21, 2011 consent order "no documentary evidence of either . . . defendant's name being removed from the title or any documents indicating an attempt to refinance was adduced." He found the realtor's certification "particularly disturbing" because it "detail[ed] the efforts on the part of . . . defendant to thwart the sale of the marital property," including her refusal to post for sale signs or install a lock box, cancellations of showings, and her refusals to sign contracts or even entertain offers. The judge observed that defendant had no incentive to refinance the home or cooperate with the sale, as she was receiving alimony and child support in addition to her employment income and was paying little, if any, of the mortgage balance. According to the judge, "[i]t became patently obvious to [the] court that the defendant was engaging in a concerted effort to maintain a certain lifestyle and remain in the marital home indefinitely without accountability."

"Given the defendant's actions, or lack thereof," Judge McGann reasoned that "the orders issued relative to the marital home ha[d] been progressive and carefully incrementalized" with "each order [being] a natural extension of the previous order, each in response to [defendant's] recalcitrant behavior." He explained the court "took into account the increasing resistance on the part of the defendant to free the plaintiff from his obligation on the mortgage and attempted to tailor relief in response to conduct." He expressly found defendant's "recalcitrant behavior" to be the driving force behind his increasingly exacting orders.

Judge McGann cited to several cases to support his legal conclusions. For example, he cited D'Angelo v. D'Angelo, 208 N.J. Super. 729, 731 (Ch. Div. 1986), for the proposition that the Family Part has the power to enforce its own orders; Konzelman v. Konzelman, 158 N.J. 185, 193 (1999), for the proposition that voluntary agreements in matrimonial matters support our "strong public policy favoring stability of arrangements"; and Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992), to explain the court's role in resolving ambiguities when a dispute arises as to the application of a property settlement agreement. The judge concluded with an analysis of the factors he considered when awarding counsel fees, as set forth in Rule 5:3-5(c).

We begin our review by acknowledging the deference we give to Family Part judges in their crafting of appropriate methods to enforce the court's orders. When reviewing a Family Part judge's order, we first defer to the judge's factual findings when they are "supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "It is well settled that Family Part factfinding receives particular deference because of 'the family courts' special jurisdiction and expertise in family matters,' which will be disturbed only upon a showing that the findings are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Cesare, supra, 154 N.J. at 413; Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006)).

Assuming the facts warrant enforcement, in our review of Family Part enforcement orders we again defer to the judge's selection of a remedy, and we will not disturb that discretionary choice of a remedy so long as there is a rational explanation consistent with the law and the evidence. Milne, supra, 428 N.J. Super.at 197-99; see,e.g., P.T. v. M.S., 325 N.J. Super. 193, 219-20 (App. Div. 1999).

"On the other hand, a 'trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review.'" Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "To the extent that the trial court's decision constitutes a legal determination, we review it de novo." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013).

Applying these standards, we turn to defendant's arguments. She contends the Family Part erred because it materially altered the MSA and the June 13, 2013 order, and such modification is time barred pursuant to Rule 4:50-2. Relying on Schwartzman v. Schwartzman, 248 N.J. Super. 73, 77 (App. Div.), certif. denied, 126 N.J. 341 (1991), defendant alleges that plaintiff must use Rule 4:50-1(f) to avoid the one-year time bar for modifying orders and "relief under this subsection is not available absent a showing of exceptional and compelling circumstances." Defendant claims the trial court should have applied the "exceptional and compelling circumstances" standard as set forth in Schwartzman, and argues the trial court erred in applying a "change in circumstances" standard. Defendant further alleges the July 28, 2015 order will result in her and the parties' son's homelessness. Accordingly, defendant argues the order "must be reversed as a matter of law." We disagree.

We conclude that defendant's arguments are without sufficient merit to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge McGann in his oral decision and his written amplification. Suffice it to say we conclude the judge met his obligation under Rule 1:7-4 to set forth the court's reasons for its decision and, since defendant never appealed from any of the orders that Judge McGann sought to enforce, we discern no abuse of the judge's discretion in enforcing the orders. See Marshall v. Matthei, 327 N.J. Super. 512, 528 (App. Div. 2000); Lathrop v. Lathrop, 57 N.J. Super. 532, 539 (App. Div. 1959); D'Angelo, supra, 208 N.J. Super. at 731. Nor do we have cause to disturb the judge's exercise of his discretion to award counsel fees under the circumstances created by defendant's willful non-compliance. See R. 5:3-5; Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008); Walles v. Walles, 295 N.J. Super. 498, 504 (App. Div. 1996).

1 See R. 2:5-1.