EILEEN LIDDELL v. THOMAS L. LIDDELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EILEEN LIDDELL,

Plaintiff-Respondent,

v.

THOMAS L. LIDDELL,

Defendant-Appellant.

_________________________________

June 16, 2014

Submitted: June 4, 2014 Decided:

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-492-09.

Thomas L. Liddell, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial matter, defendant appeals from the June 7, 2013 order of the Family Part denying his motion to enforce a provision of the parties' Marital Settlement Agreement (MSA). We reverse and remand for further proceedings.

The parties were married on December 9, 1978 and divorced on April 12, 2010. The Final Judgment of Divorce incorporated the parties' MSA.1 In pertinent part, the MSA stated:

Personal Possessions: Each party shall have sole 100% title, ownership and possession of any and all objects, household items and possessions in his/her possession, except that [defendant] shall be entitled to the tools (other than hand tools that [plaintiff] needs to maintain a home), on condition that [defendant's] brother or nephew can come and take possession of same before the house sale closing, on behalf of [defendant].

The MSA stated that "[t]he house is currently under contract for sale, and the closing is anticipated to be in approximately one month."2

According to defendant, he was supposed to receive at least 160 tools under the terms of the MSA and he maintained a comprehensive list describing each of them. Prior to the sale of the home, defendant's brother met with plaintiff to attempt to retrieve the tools. However, plaintiff only gave the brother fourteen of the items on defendant's list. Defendant sent a letter to plaintiff requesting the remaining tools. She replied by letter dated May 24, 2010. Plaintiff acknowledged she still had the tools, but asserted that the parties' two children wanted to keep them. Plaintiff stated she would "be in contact with my lawyer."

On June 3, 2010, defendant wrote to plaintiff's attorney in an attempt to resolve the matter. After he did not receive a response, defendant filed a motion seeking to enforce the provision of the MSA that required plaintiff to give the tools to his brother. Plaintiff did not file any opposition papers. On October 21, 2011, the trial court granted defendant's motion. In pertinent part, the order stated:

Defendant's request to regain possession of his tools is granted; consistent with [the terms of the MSA], and to the extent that the tools are still available, the defendant's brother or nephew is permitted to collect the tools from the plaintiff, but it must be done no later than December 1, 2011; failure to pick the tools up by the specified date will result in a waiver of the defendant's right to the tools[.]

On October 30, 2011, defendant sent plaintiff's attorney a list of the tools to be picked up. Defendant's brother certified that he contacted plaintiff on November 12, 2011 "to arrange a time" to retrieve the tools. He stated plaintiff's "response was hostile becoming very irate and infuriated, using foul language stating that she knows nothing about the tools, and stating why does [defendant want] the tools." Defendant then sent plaintiff's attorney three more letters seeking plaintiff's compliance with the court's October 21, 2011 order. Defendant sent a copy of each of these letters to the trial judge.

Defendant then filed a second motion to enforce the terms of the MSA concerning the return of the tools. Once again, plaintiff filed no papers opposing the motion. On June 13, 2012, the judge's law clerk sent a letter to defendant asking for plaintiff's telephone number so that she could be contacted concerning the matter. Defendant promptly provided this information. Defendant continued to follow up with the court to inquire about the scheduling of his motion. Sometime in the interim, the matter was assigned to a different judge.

On October 12, 2012, the judge issued an order granting defendant's motion and ordering plaintiff "to turn over to defendant's brother . . . all tools belonging to the defendant within thirty . . . days of the date of this Order[.]" The order specifically stated that "[p]laintiff's failure to comply with this Order may result in sanctions including, but not limited to, monetary fines[.]"

On October 22, 2012, defendant sent plaintiff a letter, enclosing a copy of the order, and requesting that plaintiff "ready the Missing Tools . . . for pick up by my brother[.]" However, plaintiff did not cooperate with defendant's brother's attempt to retrieve the tools. Defendant then filed a third motion to enforce the MSA. On December 18, 2012, the judge issued an order denying the motion. The order stated, "motion is duplicative and appears harassing."

Defendant immediately sent a letter to the judge providing the complete history of the matter and his attempts to retrieve his property. On January 29, 2013, the judge advised defendant that his letter could not be considered because he had not sent a copy of it to plaintiff. Defendant corrected this error and requested a case management conference to discuss the matter. On February 13, 2013, the judge denied this request.

Defendant then filed another motion to enforce the MSA. Plaintiff did not respond to the motion. On June 7, 2013, the judge denied the motion with prejudice. In a short statement of reasons, the judge stated:

[P]laintiff did turn over tools to the defendant's brother in the Spring and/or Summer of 2010. That the property is not what [defendant] remembers, or would like is no longer a Family Court issue. The plaintiff denies possessing any other tools.

Despite [the prior judge's] directive that the defendant waived his right to the tools after December 1, 2011, this Court gave the defendant a second opportunity to retrieve same in its Order of October 12, 2012. The plaintiff . . . has stopped responding to the defendant's notice of motions. The defendant has exhausted judicial resources in pursuit of tools that are not likely in the plaintiff's possession any longer.

The Court has now given the defendant two . . . opportunities to retrieve his tools and responded to every inquiry he has made. The Court again denies the defendant's requested relief.

This appeal followed.

On appeal, defendant contends the order is not supported by the record and that the motion judge mistakenly exercised his discretion by failing to take action under Rule 1:10-3 to compel plaintiff to comply with the terms of the MSA. We agree.

The scope of our review of the Family Part's order is limited. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),

we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion.

[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).]

We will only reverse the judge's decision when it is necessary to "'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

Applying these standards in this case, we are constrained to conclude that the judge erred in denying defendant's enforcement motion. The record shows that defendant sent plaintiff a list of the tools covered by the MSA shortly after the parties' divorce and plaintiff replied by acknowledging she was in possession of the tools. Plaintiff never responded to any of defendant's motions. Thus, there is simply nothing in the record to support the judge's finding that "plaintiff denies possessing any other tools" or his finding that the tools are "not likely in the plaintiff's possession any longer."

The record also does not support the judge's conclusion that defendant "has exhausted judicial resources in pursuit of [the] tools," primarily because plaintiff "has stopped responding to the defendant's notice of motions." Plaintiff's recalcitrance, including her failure to respond to defendant's motions, was the express reason why defendant properly returned to court each time plaintiff ignored an order. By doing so, he was not "harassing" plaintiff and his motions were only "duplicative" because plaintiff steadfastly refused to comply with the MSA. Indeed, the court had previously ordered plaintiff to abide by the terms of the MSA or face the imposition of sanctions. Plaintiff never complied.

Under these circumstances, we believe the judge mistakenly exercised his discretion in denying defendant's motion to enforce the MSA and that the judge should have taken additional steps to enforce the court's prior orders under Rule 1:10-3. This Rule "provide[s] a mechanism, coercive in nature, to afford relief to a litigant who has not received what a Court Order or Judgment entitles that litigant to receive." D'Atria v. D'Atria, 242 N.J. Super. 392, 407 (Ch. Div. 1990). "The particular manner in which compliance may be sought is left to the court's sound discretion." Bd. of Educ. of the Twp. of Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501, 509 (Ch. Div. 2001).

A number of appropriate remedies were available to address plaintiff's intransigence. By way of example, the court could have ordered plaintiff to appear at a hearing to provide testimony concerning the tools and to explain why she did not give all of them to defendant's brother. If the tools were no longer in her possession, the court would have been in a position to make findings of fact on the issue and fashion an appropriate remedy, which could include the entry of a judgment against plaintiff for the monetary value of the missing items. On the other hand, if plaintiff still had the tools, or refused to appear for the hearing, the court could have imposed monetary sanctions upon plaintiff in order to coerce her to turn them over to defendant's brother. Finally, if plaintiff were able to provide a valid excuse for her failure to turn over the tools, such as credible evidence disputing defendant's brother's claim that he repeatedly attempted to retrieve them, the court could dispose of the matter by making express findings of fact relieving plaintiff of the obligation.

Because defendant demonstrated that plaintiff failed, without any explanation, to comply with the MSA or the court's two prior enforcement orders, he was entitled to a third enforcement order and consideration of appropriate sanctions under Rule 1:10-3. Thus, we reverse the June 7, 2013 order and remand for further proceedings consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

1 Plaintiff was represented by an attorney during the negotiation of the MSA. Defendant was incarcerated at that time and represented himself in the dissolution proceedings. Defendant is still incarcerated.

2 The record is not clear as to when the closing actually occurred.