MARY BLACKWELL v. MARTIN BLACKWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4628-05t34628-05T3

MARY BLACKWELL,

Plaintiff-Appellant,

v.

MARTIN BLACKWELL,

Defendant-Respondent.

_________________________________________________

 

Argued March 27, 2007 - Decided April 10, 2007

Before Judges Weissbard and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division - Family Part, Morris

County, FM-14-1419-02.

Stephen E. Samnick argued the cause for

appellant.

Joseph P. Cadicina argued the cause for

respondent (Laufer, Knapp, Torzewski,

Dalena & Sposaro, attorneys; William M.

Laufer, of counsel, and Kimberly N. Gronau,

on the brief).

PER CURIAM

In this post-divorce, property distribution matter, plaintiff, Mary Blackwell, appeals from a decision by a judge of the Family Part affirming an accounting and division of the couple's assets conducted by the accounting firm of Amper, Politziner & Mattia (the Politziner firm). Plaintiff claims that her former husband, defendant Martin Blackwell, was improperly granted a credit of $20,872 in the distribution of assets to him. The amount consisted of $20,000 that plaintiff had taken from joint assets to pay her attorney's retainer pursuant to a pendente lite order issued by another judge of the Family Part on August 9, 2002, plus an additional $872 in funds that the accountants attributed to her. We affirm.

The long-term marriage between plaintiff and defendant was terminated by a judgment of divorce entered on April 13, 2004. At the time that the divorce was granted, extensive negotiations had occurred between the parties regarding custody and support for the three children of the marriage, alimony, and equitable distribution, resulting in an agreement that was placed on the record by defendant's attorney during the divorce hearing. Subsequently, on May 6, 2004, a supplemental judgment of divorce and property settlement agreement (PSA) that incorporated the prior oral agreement was entered by the court without objection by plaintiff.

The equitable distribution section of the PSA listed various bank, brokerage, and retirement accounts held by the parties and their approximate balances. Following that enumeration, the PSA stated:

These funds are all subject to adjustments to be made by David Politziner who will provide the parties with an accounting of these funds and the parties agree that his findings will be binding upon them.

The record establishes that this provision was added because of concern that dissipation of joint funds by the parties had occurred and because of the resultant need to correctly determine the sums subject to distribution.

The PSA concluded with a section governing counsel and expert fees, which provided:

Each party shall pay their own counsel fees. All prior orders on counsel fees will be vacated. Both parties shall equally pay for the services of the forensic accountants, David Politziner & Associates and that will include all outstanding balances.

As we have noted, on August 9, 2002, a Family Part judge had entered a pendente lite order in this matter that provided in relevant part:

5. Each party shall pay one-half of the fees for experts appointed by the court, subject to allocation by the court or pursuant to the agreement of the parties. Counsel fees and expert fees for both parties to be taken from joint assets, on notice and accounted for.

* * *

21. Each counsel may have an initial $25,000 retainer, less what has been paid on account.

As authorized, plaintiff withdrew $20,000 from a joint bank or brokerage account for use in payment of attorney's fees. Defendant did not do so. Additionally, in an order dated January 26, 2004, defendant was directed to pay counsel fees of $1,687.50 and costs of $50 incurred by plaintiff in connection with a motion to enforce litigant's rights. That amount remained unpaid at the time that the PSA was finalized.

At the conclusion of its accounting, the Politziner firm determined that the sum of $49,120 had been "dissipated" by plaintiff. However, it found further that some of the funds were utilized by plaintiff for joint experts and therefore were "properly dissipated." It determined that an additional $872 taken by plaintiff from joint funds could not be attributed to payment of expert fees, and it recognized plaintiff's withdrawal of $20,000 from joint funds pursuant to the 2002 pendente lite order. After reconciling the assets of the parties, including their bank and brokerage accounts, and equally dividing them, the Politziner firm therefore determined that defendant was owed a credit in the sum of $20,872, and it deducted that amount from the sum to be paid by defendant to plaintiff in order to equalize their assets.

Plaintiff contested the accounting, filing a motion seeking to vacate the $20,000 credit issued in defendant's favor. However, the motion was denied, and the Politziner firm's accounting containing the credit was confirmed in orders dated March 31, 2006.

On appeal, plaintiff claims that the credit in defendant's favor was not authorized by the terms of the PSA, and that the Politziner firm exceeded the authority granted to it by the PSA when it made that calculation. Plaintiff claims, additionally, that the deduction was mathematically incorrect, and that because the sum utilized by plaintiff was taken from marital funds, the credit should have been halved. We disagree with both of plaintiff's contentions and affirm.

We address first the mathematical calculation that gave defendant a credit of $20,000. It must be recognized in that regard that, prior to equitable distribution, plaintiff had already received the sum of $20,000, of which $10,000 constituted her share of joint marital funds and $10,000 constituted defendant's portion. Following the divorce, plaintiff was not entitled to receive her $10,000 again by way of equitable distribution, and she remained liable to defendant for the other $10,000. As a result, in calculating the amounts to be equitably distributed, the defendant was entitled to a credit for $10,000, consisting of the money owed to him, and to an additional credit of $10,000, consisting of the money that had already been disbursed from joint funds to the plaintiff. Because this rationale comports with the calculations made by the Politziner firm, we find no mathematical error to have occurred.

We also find no merit in plaintiff's argument that the PSA did not permit consideration of the counsel fee payment made pursuant to the 2002 pendente lite order or authorize the Politziner firm to recognize a credit for such payment. The PSA, as we have outlined it, required the Politziner firm, among other things, to reconcile the bank and brokerage accounts maintained by the parties. The $20,000 obtained by plaintiff pursuant to the 2002 pendente lite order was withdrawn from one of such accounts. The PSA further provided that the parties were to pay their own attorneys' fees and, significantly, it further provided that "all prior orders on counsel fees shall be vacated." The 2002 pendente lite order was such an order. Nothing in the transcript of the divorce hearing at which the oral agreement was set forth, or in the PSA itself, excepts this pendente lite order from the provision requiring that prior orders on counsel fees be vacated. Although the PSA did not expressly delegate duties to the Politziner firm with respect to counsel fees, the PSA did require that the firm reconcile the parties' accounts, including the account from which the counsel fee payment had been withdrawn. It properly did so.

We do not regard the PSA as ambiguous with respect to how prior orders concerning counsel fee payments were to be treated. They were to be regarded as vacated. The PSA was clear on that point. M.J. Paquet, Inc. v. N.J. Dept. of Transp., 171 N.J. 378, 396 (2002) (holding that contracts generally are to be given their plain and ordinary meaning). Further, we find no ambiguity in the PSA with respect to the power conferred by the parties upon the Politziner firm to reconcile their bank and brokerage accounts in light of mutual allegations of dissipation. Cf. Kimm v. Blisset, 388 N.J. Super. 14, 25 (App. Div. 2006), certif. denied, 189 N.J. 428 (2007) (holding that the scope of powers of an arbitrator are defined by the parties' grant of such powers). And, we find within the PSA no exception from that accounting for amounts withdrawn from such bank or brokerage accounts and expended for counsel fees. Therefore, we perceive no legal or factual basis for the argument that the Politziner firm was acting beyond its authority when it included the counsel fee payment in its accounting. Nor do we find any error by the Family Part judge in confirming the accounting prepared by the Politziner firm. The court properly enforced the provisions of the PSA as written. County of Morris v. Fauver, 153 N.J. 80, 103 (1998); East Brunswick Sewerage Auth. v. East Mill Assocs., Inc., 365 N.J. Super. 120, 125 (2004). As Judge King stated in East Brunswick:

A court has no power to rewrite the contract of the parties by substituting a new or different provision from what is clearly expressed in the instrument. It has been decided many times and in many cases that the court will not make a different or a better contract than the parties themselves have seen fit to enter into.

[Ibid.]

We do not find plaintiff's misguided efforts to cast both defendant and the Politziner firm in an unfavorable light and to heap aspersions on their motives as furnishing any basis to change this result.

 
Affirmed.

It was this lesser amount that was contested in the Family Part.

For simplicity, we illustrate this conclusion using a total sum of $100 in distributable assets with a $20 withdrawal from that amount by plaintiff pursuant to the 2002 pendente lite order. Following the withdrawal of $20, $80 in funds remained that, when equally divided, resulted in $40 per person. However, it must be kept in mind that plaintiff had already received and utilized $10. Her actual share following distribution therefore was $50 of which $10 had previously been paid, leaving a balance of $40. Because of the withdrawal of $20 from joint funds, plaintiff owed defendant $10. Thus, she was required to subtract $10 from the $40 paid to her, thereby realizing only $30. Defendant's $50 share (which equaled plaintiff's) consisted of the $40 to which he was otherwise entitled plus the $10 owed to him by plaintiff.

(continued)

(continued)

8

A-4628-05T3

April 10, 2007