DIANA JUSTICH v. ROBERT W. JUSTICH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02914-13T4

A-4081-13T4

DIANA JUSTICH,

N/K/A DIANA STANTON,

Plaintiff-Respondent,

v.

ROBERT W. JUSTICH,

Defendant-Appellant.

________________________________

Argued telephonically November 10, 2015 Decided December 14, 2015

Before Judges Fuentes, Koblitz, and Gilson.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County, Docket No. FM 07-0004-09.

Francis W. Donahue argued the cause for appellant (Donahue, Hagan, Klein & Weisberg, LLC, attorneys; Mr. Donahue, of counsel and on the brief; Alex M. Miller, on the brief).

Laurie A. Bernstein argued the cause for respondent.

PER CURIAM

Defendant Robert Justich appeals from both a March 29, 2014 order that gave him only 43% of the pay-down of the mortgage on the marital home, and an amended judgment of divorce (JOD) entered on January 20, 2014. He argues that the permanent alimony award reflected in the amended JOD is incorrect and that the trial court erred in failing to divide the pay-down of the mortgage equally as provided for in the parties' memorandum of understanding (MOU). We consolidate these two appeals for the purpose of writing one opinion. Except insofar as the parties have jointly agreed to further amend the amended JOD to reflect the precise wording of their MOU regarding alimony, we affirm.

The parties married in 1985 and had three children. Plaintiff, Diana Stanton, filed a divorce complaint in September 2008. The parties agreed to a pre-divorce, equitable distribution with prejudice, of $2,000,000 to each of them, with $2,000,000 held in reserve to cover plaintiff's Schedule A expenses.1 Due to the nature of the assets, the division was not equal, resulting in a payment of $2,100,312 to plaintiff and $1,993,956 to defendant. In April 2012 the parties entered into a binding MOU, which in paragraph six stated that there would be "no adjustments" to equalize these distributions. The MOU resolved all but five economic issues, which concerned the children's expenses, taxes, and the division of certain personal property. The parties agreed to arbitrate those issues.

The parties were then divorced on June 27, 2012, and shortly thereafter began post-judgment litigation. Because plaintiff depleted the funds intended for the Schedule A expenses for her and the children, and defendant did not comply with the court's order to contribute to those expenses, the court awarded plaintiff funds from defendant's portion of the proceeds of the marital home, which was sold in December 2012.

The MOU called for the pay-down of the mortgage on the marital home, calculated from September 2008 until the sale, to be divided evenly between the parties, stating "[u]pon the sale of the house the net proceeds shall be divided 57% to [plaintiff] and 43% to [defendant]. The pay[-]down of the mortgage from September 11, 2008 to the time of sale shall be shared equally." Yet in spite of this language, the court provided defendant with only 43% of the pay-down, thus reducing his share by $41,174. The court wrote its reasons for modifying the MOU in this one instance in its March 29, 2014 order, stating

In accordance with [paragraph five of the MOU], the parties were to split the carrying costs of the house and based on their joint contributions; they would share equally in the pay[-]down of the mortgage. Defendant, however, never paid or contributed to the mortgage payments or carrying costs of the house. Defendant did not present any evidence - cancelled checks, credit cards, etc. showing any contribution to the carrying costs. Since defendant did not pay his 50% of the carrying costs of the home, he is not entitled to 50% of the pay-down of the mortgage.

Defendant argues that he did belatedly pay his share of the carrying costs, which were included in a $100,000 payment on December 12, 2012, and a $148,152 court-ordered deduction from his share of the proceeds of the sale of the house. Defendant was ordered to contribute to the carrying costs of the home on an ongoing basis, which he clearly did not do. We defer to the factual findings and feel of the case of the motion court, in particular "because of the family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We will not disturb her decision on this issue given her far superior, in depth, familiarity with this lengthy litigation.

The parties also disputed the language in paragraphs fifteen and seventeen of the amended JOD regarding spousal support. At oral argument both counsel agreed to modify the language to reflect the following paragraphs taken directly from the first two paragraphs of the MOU

1. [Defendant] will pay [plaintiff] tax free alimony in the amount of $100,000 for five years which shall commence upon the signing of the agreement. The payment shall be monthly.

2. The parties shall have the right to review each other's economic circumstances six months prior to the termination of the alimony in order to see if further alimony payments are warranted, the amount and duration. Any dispute shall be submitted to one mediation session before litigation is commenced.

All other issues raised by the parties in these appeals are without sufficient merit to require further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part and remanded, by consent of the parties, to correct paragraphs fifteen and seventeen of the amended JOD to conform to the language in the MOU.

1 As set forth in the Family Case Information Statement. Family Part Case Information Statement, Pressler & Verniero, Current N.J. Court Rules, Appendix V at www.gannlaw.com (2016).