RAJAK JAGTIANI v. MEENU JAGTIANI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1226-04T31226-04T3

RAJAK JAGTIANI,

Plaintiff-Respondent

v.

MEENU JAGTIANI,

Defendant-Appellant.

___________________________________________________

 

Submitted November 28, 2005 - Decided

Before Judges Alley and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. FM-02-604-01.

Meenu Jagtiani, appellant pro se.

Schiffman, Abraham, Kaufman & Ritter, attorneys for respondent (Gene N. Schiffman, on the brief).

PER CURIAM

In this appeal, we are required to consider whether the trial judge erred in granting supplemental relief to plaintiff-husband in equitably distributing the marital home in order to compensate him for the enhanced value of the property while defendant-wife retained possession. Satisfied that the trial judge equitably resolved the dispute, we affirm.

Following a two-day trial, the parties' fifteen-year marriage, which produced two children, was dissolved by a judgment of divorce entered on August 20, 2002. In his oral decision, the trial judge found that the children's best interests required that they remain in the marital home. Accordingly, he directed that the defendant-wife could remain in the marital home so long as she paid the mortgage and taxes until the youngest child completed high school, but that the house be thereafter sold. The judge also held that upon the home's sale defendant would receive 52% of the net proceeds, and plaintiff the remaining 48%.

The August 20, 2002 judgment recited only the judge's determination that the marriage be dissolved. It contained no details about the division of the parties' interests in the marital home or the other issues that had been litigated. The parties sought reconsideration.

As a result of these post-judgment submissions, the judge rendered a written supplemental decision on October 11, 2002 explaining his disposition of the marital home and stating his new determination that, because of the considerable time that would elapse between the date of his decision and the date when the youngest child would be expected to graduate from high school, that defendant should be required to re-finance the property within two years, and compensate plaintiff for his share of the home, or else the property would be sold. An amended judgment was entered on November 12, 2002 that memorialized this determination and provided further details regarding this anticipated transaction.

Neither party appealed the August 20, 2002 judgment of divorce or the November 12, 2002 amended judgment. Instead, a few months after the two-year period referenced in the amended judgment had elapsed, plaintiff wrote to defendant inquiring about when the property would be appraised for purposes of the buy-out of his interest in the home. Defendant did not respond. Accordingly, plaintiff moved for enforcement of the November 12, 2002 amended judgment.

In response to this motion, defendant argued that she should be permitted to purchase plaintiff's interest in the marital residence by paying 48% of $335,000. At the trial more than two years earlier, the parties had stipulated that the marital home should be valued at $335,000. Plaintiff, however, argued that the home should be appraised in order to provide a more realistic value of the property in light of the passage of time. The trial judge agreed with plaintiff. As a result, among other things, an order was entered on August 27, 2004 that: (1) appointed a real estate appraiser; (2) required defendant's cooperation with the appraiser; (3) directed that defendant, within a brief period of time, provide plaintiff with written notice as to whether she had elected to purchase his interest in the property "at a sum equal to 48% of the fair market value" as determined by the appointed appraiser; (4) compelled defendant, if she elected not to purchase plaintiff's interest, to take all necessary steps to cause the property to be listed for sale; and (5) mandated that defendant accept an offer to purchase at a price not less than the appraised fair market value should she elect not to purchase plaintiff's interest.

Defendant moved for reconsideration and, among other things, argued that the the previously-stipulated value of $335,000 should continue to govern the calculation of plaintiff's 48% interest in the property and, also, that the date upon which she should be required to purchase plaintiff's interest or place the house on the market should be further delayed. The trial judge again modified his disposition of the marital home, allowing a further delay in its sale, but also compelling defendant to pay, in the meantime, 48% of $335,000 to plaintiff in partial payment of his interest in the marital home. In his order of September 24, 2004, the judge directed, in part, the following:

1. Defendant shall pay to plaintiff 48% of . . . $335,000 pursuant to the court's prior decisions (less any debits or credits) within 30 days of this order.

2. An appraisal [shall] be conducted in July 2006, to fix a value for the marital home as of July 15, 2006. From that value, [defendant] shall provide to [plaintiff] 48% of the enhanced value (enhanced value is defined as: the appraised value of July 15, 2006 less $335,000 . . .).

3. Should the defendant sell the home prior to July 2006, then in that event she shall pay to [plaintiff] 48% of the difference between the sale price (less any reasonable costs of closing) and $335,000.

Defendant filed a notice of appeal seeking review only of this September 24, 2004 order. In her brief, however, defendant appears to assert arguments that extend beyond her criticism of the terms of the September 24, 2004. We reject those arguments to the extent they attack the legitimacy of earlier orders that were not cited in the notice of appeal. See R. 2:5-1(f)(3)(i); Sikes v. Tp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994); 1266 Apt. Corp. v. New Horizon Deli, 368 N.J. Super. 456, 459 (App. Div. 2004).

We also reject defendant's argument that the trial judge should have required that the parties to adhere to the value of the property stipulated at trial over two years earlier. We are satisfied from our review of the record that the judge's determination had the salutary effect of placing the parties on an equal footing requiring the distribution of their interests in the marital home. If the property's value increased while defendant continued to both maintain possession of the property and delay plaintiff's receipt of his interest in the property -- whether rightly or wrongly -- then fundamental fairness required that plaintiff be entitled to benefit to the extent the value of the property increased. In such a circumstance, simple equity requires that any increase in value attributable to market factors be shared by the parties. See, e.g., Wadlow v. Wadlow, 200 N.J. Super. 372, 384 (App. Div. 1985); Bednar v. Bednar, 193 N.J. Super. 330, 333 (App. Div. 1984).

Defendant also argues that the September 24, 2004 order is erroneous because it prolongs the parties' relationship contrary to decisions such as Moore v. Moore, 114 N.J. 147, 162-64 (1988). Because the order honors defendant's desire to remain in the property for an additional two years, defendant should not be heard to complain of the consequences of that ruling. And, to the extent the order prolongs the relationship by enforcing defendant's equitable right to share in the property's increased value during the time that defendant retains possession of it, we conclude that this equitable remedy overrides any concern about retaining a continued entanglement of the parties' interests and the prolongation of their unhappy relationship.

Defendant's pro se brief fails to set forth any additional arguments having sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Manoj was born on May 24, 1988 and Tina-Anjali was born on April 1, 1996.

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A-1226-04T3

December 13, 2005