JENNIFER KEELING f/k/a SNYDER v. ROBERT B. SNYDER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3505-05T53505-05T5

JENNIFER KEELING f/k/a

SNYDER,

Plaintiff-Appellant,

v.

ROBERT B. SNYDER,

Defendant-Respondent.

_________________________________

 

Argued February 28, 2007 - Decided April 19, 2007

Before Judges Wefing, Parker and Yannotti.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Somerset

County, No. FM-18-713-00.

Bonnie C. Frost argued the cause for

appellant (Einhorn, Harris, Ascher, Barbarito,

Frost & Ironson, attorneys; Ms. Frost,

on the brief).

Dale E. Console, attorney for respondent.

PER CURIAM

Plaintiff Jennifer Keeling appeals from paragraph 11 of a trial court order entered January 31, 2006, denying her motion seeking relief under R. 4:50 from certain provisions of the judgment granting a divorce from defendant. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

The parties were married in December 1990 and separated in April 1999; two children were born of the marriage. Plaintiff filed her complaint for divorce in February 2000.

During the time of their marriage, defendant was a stockholder in Binsky & Snyder, a close corporation. We infer from the material before us that defendant's father was the driving force in the corporation. The extent of defendant's holdings in Binsky & Snyder was a disputed issue during the parties' divorce litigation, and plaintiff engaged in extensive discovery on that question. According to plaintiff, defendant represented that at the time of the divorce he only owned 129 shares although he had owned more in the past. Plaintiff said that defendant maintained that his father had demanded that defendant transfer back to him 400 shares of Binsky & Snyder stock that had been in defendant's name. Some of these shares, defendant alleged, had been gifts from his father conditioned on defendant meeting certain performance criteria, which he had failed to do, some were returned to repay a loan, and some represented a duplicate certificate erroneously issued.

In August 2000 Binsky & Snyder and a subsidiary, Binsky & Snyder Services, were sold to Keyspan, and defendant received approximately $700,000 for his shares.

In July 2002 an amended judgment of divorce was entered. It included the following provisions pertinent to this appeal. Defendant was responsible for child support payments of $450 per week for the couple's two children; the agreement notes that this sum was calculated on the basis of defendant earning $150,000 per year. Plaintiff waived any claim to alimony and received the following assets in equitable distribution: the marital home, in which the equity was $200,000; and most of the furniture; a Ford Expedition; defendant's profit-sharing plan in Binsky & Snyder, valued at $74,000; and a lump sum non-taxable payment of $800,000. Defendant retained the home he had purchased after the divorce complaint was filed, which had equity of approximately $140,000; premarital accounts worth approximately $17,000; two post-complaint accounts worth approximately $40,000; and the $707,000 he had received when Keyspan purchased Binsky & Snyder. Defendant also had an interest in a real estate holding company funded by his father that was not subject to equitable distribution. Each party was to be responsible for his or her own counsel and expert fees.

Several days before the parties finalized this agreement, defendant filed a Case Information Statement ("CIS"). His statement of assets on that CIS accorded with what defendant received in equitable distribution.

In January 2005, less than three years after the divorce had been finalized, defendant, his father and three other individuals repurchased Binsky & Snyder and its subsidiary from Keyspan. Defendant's equity in the repurchased companies was approximately $3.26 million, more than a four-fold increase in his assets from what he had reported on his 2002 CIS. In addition, defendant had acquired, in the interim, title to a house in Manasquan and a house in Vermont.

In her motion, plaintiff sought discovery as to this sudden increase in the value of defendant's assets. She contended that defendant had secreted from her the true nature and extent of his holdings in Binksy & Snyder during the divorce litigation and that in consequence she received less in equitable distribution than she otherwise might have.

The trial court denied plaintiff's motion, citing in its written statement of reasons that it deemed defendant's explanation with regard to these transactions to be satisfactory and that it deemed plaintiff's motion untimely because it was filed nearly four years after the judgment of divorce. While we understand the trial court's reluctance to reopen a matter that had been the subject of extensive and expensive proceedings, we are satisfied that plaintiff should be afforded an opportunity to demonstrate that defendant improperly secreted assets that should have been available for equitable distribution.

The papers submitted in connection with this motion contained conflicting certifications. Defendant's explanation may prove ultimately correct, but that judgment should not be reached on the basis of the papers alone.

As to the timeliness of the motion, we note that the parties did not reach a property settlement agreement until July 2002, when the amended judgment of divorce was entered. That should be the date from which plaintiff's diligence is measured.

In addition, it is important to view the context in which this issue arose. It was only when plaintiff received defendant's income tax returns in connection with an application for increased child support in accordance with the July 2002 agreement that she had information which could support her claim of concealment. She acted promptly once in possession of that information.

We are aware from our review of this file that the parties have already spent large sums on attorneys and experts. We are confident that the trial court will manage whatever discovery is necessary to avoid having more assets consumed in the costs of litigation.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

 

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6

A-3505-05T5

April 19, 2007