EILEEN LIDDELL v. THOMAS L. LIDDELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EILEEN LIDDELL,

Plaintiff-Respondent,

v.

THOMAS L. LIDDELL,

Defendant-Appellant.

________________________________

January 9, 2017

Submitted December 19, 2016 Decided

Before Judges Nugent and Haas.

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

Thomas Liddell, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

This post-judgment matrimonial matter returns to us after remand proceedings directed by our previous opinion. Liddell v. Liddell, No. A-5186-12 (App. Div. June 16, 2014). Following a hearing, the remand court denied defendant's motion to enforce a provision of the parties' Marital Settlement Agreement (MSA). We affirm.

We assume familiarity with, and incorporate by reference, the underlying procedural history and facts contained in our prior opinion. Id. at 1-6. Therefore, we recite only the most salient facts from the record. The parties were married on December 9, 1978 and divorced on April 12, 2010. Id. at 1. The Final Judgment of Divorce incorporated the parties' MSA. Ibid. 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].

[Ibid.]

The MSA did not include an itemized list of the tools the parties intended to be covered by this provision.

Defendant was incarcerated at the time of the parties' divorce and is still incarcerated. Ibid. Before the parties' home was sold in 2010, defendant stated that his brother met with plaintiff to attempt to retrieve the tools. Id. at 2. However, defendant claimed that plaintiff only gave the brother fourteen of the 160 tools he believed were in the house when he was incarcerated in 2006. Id. at 2.

Thereafter, defendant filed a motion seeking to enforce the terms of the MSA. Id. at 2-5. He prepared a list of the tools he believed were in the home at the time of the parties' divorce and asked the Family Part to order plaintiff to give them to his brother. Id. at 3. On June 7, 2013, the trial court denied defendant's motion. Without conducting a plenary hearing, the court found that plaintiff gave defendant's brother all of the tools before she sold the home. Id. at 4-6.

Defendant appealed. Id. at 6. We found that because of the factual dispute between the parties concerning whether plaintiff returned the tools, the trial court should have conducted a hearing before resolving defendant's enforcement motion. Id. at 8-9. Therefore, we reversed and remanded the matter for further proceedings. Id. at 10.

The remand judge conducted an evidentiary hearing on April 16, 2015. Plaintiff appeared by telephone and the judge made arrangements for defendant to appear by video-conference from prison.

Plaintiff testified that defendant's brother and defendant's nephew came to the house in May 2010 to pick up the tools. Plaintiff told defendant's brother that the parties' sons wanted to keep some of the tools, and defendant's brother agreed. Plaintiff stated that defendant's brother then "took away . . . a pickup truck full of items." Plaintiff and the parties' sons "kept maybe a power drill, a power saw, hammers, [and] screwdrivers." Plaintiff said she had moved three times since the parties' divorce and no longer had any of the tools. The parties' sons now lived on their own.

Defendant disputed plaintiff's account that she gave his brother most of the tools. Defendant alleged that his brother and his nephew told him that they only picked up "a couple [of] boxes" of tools that they took away in a pickup truck. Defendant did not call his brother or his nephew as witnesses at the hearing.

Defendant also testified that he did not have a problem with the parties' sons keeping some of the tools, but wanted them to send him a letter asking his permission before taking them. Defendant stated, "I was willing to give them whatever they asked for, but I never got a response."

Based on these facts, the remand judge rendered a thorough written decision on July 7, 2015 denying defendant's motion to enforce the MSA. The judge found that plaintiff was "far more credible" than defendant. The judge noted that defendant's "information [was] all second hand" because he did not "know what his brother picked up." The judge also credited plaintiff's testimony that defendant's brother allowed the parties' sons to keep some of the tools for their own use. And, as stated in the MSA, plaintiff was permitted to retain hand tools needed to maintain a home. Under these circumstances, the judge concluded that defendant's allegations were unsupported by the record and, therefore, he denied defendant's motion to enforce the MSA. This appeal followed.

On appeal, defendant raises the following contentions

POINT I

SUPERIOR COURT, CHANCERY DIVISION, SUSSEX COUNTY LOST SIGHT OF THE REMAND ISSUES AT BAR BY FAILING TO COMPLY CONSIST[E]NT WITH THE HIGHER COURT'S REMAND ORDER.

POINT II

SUPERIOR COURT, CHANCERY DIVISION, SUSSEX COUNTY ARBITRARILY AND CAPRICIOUSLY DENIED APPELLANT'S MOTION FOR ENFORCEMENT OF LITIGANT'S RIGHTS AND HAS BIASED APPELLANT THROUGH ITS ABUSE OF DISCRETION.

POINT III

SUPERIOR COURT, CHANCERY DIVISION, SUSSEX COUNTY ERRORS CLAMING [SIC] APPELLANT'S [ENFORCEMENT OF LITIGANT'S RIGHTS] MOTIONS WERE EX PARTE WITHOUT SUPPORT FROM THE RECORD. RESPONDENT WAS PROPERLY SERVED AND IS SUPPORTED BY THE RECORD PURSUANT TO THE RULES OF THE COURT. APPELLANT'S ENFORCEMENT MOTIONS WERE NOT FOR HARASSMENT PURPOSES.

Our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)).

Moreover, we owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare, supra, 154 N.J. at 411-12. 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) (internal quotations omitted) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

After reviewing the record in light of these principles, we conclude that defendant's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). The remand judge's factual findings are fully supported by the record and, in light of those facts, his legal conclusions are unassailable. The judge carefully reviewed the relevant evidence and fully explained his reasons in a logical and forthright manner. In light of the record, defendant's arguments reveal nothing "so wide of the mark" as to require our intervention. Parish, supra, 412 N.J. Super. at 48.

We therefore affirm the June 7, 2015 order substantially for the reasons that the remand judge expressed in his comprehensive and well-reasoned opinion.