HARRY GULUTZ v. KAREN GULUTZ

NOT FOR PUBLICATION WITHOUT THE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-3059-15T1


HARRY GULUTZ,

        Plaintiff-Appellant,

v.

KAREN GULUTZ,

     Defendant-Respondent.
__________________________

              Submitted May 24, 2017 – Decided February 8, 2018

              Before Judges Fuentes and Simonelli.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FM-12-0408-11.

              Tarella & Liftman, attorneys for appellant
              (James A. Tarella, on the brief).

              Respondent has not filed a brief.

              The opinion of the court was delivered by

FUENTES, P.J.A.D.

        This matter originated in the Law Division, Special Civil

Part when plaintiff Harry Gulutz filed a complaint against his

former wife Karen Gulutz to collect $7160.07 that she borrowed on
November 11, 2012.    Defendant memorialized her debt to plaintiff

in a handwritten note signed by both parties on November 16, 2012.

In this note, defendant promised to pay plaintiff from the proceeds

of the sale of their marital home "within [two] weeks or by

December 2, 2012."    Plaintiff began this collection action when

defendant failed to pay the debt.

     In lieu of an answer, defendant moved to transfer the matter

to the Family Part pursuant to Rule 5:1-2(a), claiming the dispute

arises from the provision in the Property Settlement Agreement

(PSA) that addressed and resolved the equitable distribution of

the marital estate.    The parties executed the PSA on August 23,

2011 and the Family Part incorporated it in the final Judgment of

Divorce (JOD) entered that same date.    In an order dated August

26, 2013, the Family Part granted defendant's motion.     However,

in an order dated September 13, 2013, the Family Part Judge who

would eventually decide this dispute, sua sponte directed the

parties

          to re-file their requested relief in Family
          Court in accordance with New Jersey Court
          Rules.   In addition, all future filings in
          this matter are to be made in Family Court .
          . . Any requested relief not specifically
          addressed in this Order is DENIED.

     Thereafter, the parties engaged in unspecified discovery and

added a number of claims based on alleged failures to abide by the


                                 2                          A-3059-15T1
terms of the PSA.    In response to the parties'1 cross-motions

seeking relief in a variety of areas related to past and present

financial obligations, the judge entered an order on December 20,

2013 that "RESERVED" decision pending the outcome of a plenary

hearing on all of the six specific requests for relief sought by

plaintiff.   With respect to the two specific requests sought by

defendant, the judge granted her request and ordered plaintiff

          to provide her the business K-1's for 2012
          including any required compensation and same
          going forward . . . [t]he Plaintiff is hereby
          ordered to provide the Defendant with the
          business K-1's for Gordon New Brunswick MAB
          Urban Renewal, LLC and VG Resources, LLC.
          Section 6.8 of the parties' PSA states that
          the wife shall be entitled to ten percent
          (10%) of the Husband's share of all future
          distributions and profits paid in regard to
          Gordon New Brunswick MAB Urban Renewal, LLC
          and VG Resources, LLC.      Plaintiff is to
          provide the wife on an annual basis copies of
          the K-1['s] relating to these businesses, as
          proof of all distributions and/or profits
          paid.   Said K-1's shall be provided to the
          wife by April 1st of each year, or as soon
          thereafter as same become available.

The judge "RESERVED" decision pending the outcome of a plenary

hearing with respect to defendant's request to require plaintiff

"to pay 50% of the bills and maintenance of the marital home and

the outstanding IRS payments totaling $5864."


1
  Defendant was pro se at the time the Family Part decided these
cross-motions.     However, she was represented by counsel
thereafter, including during the plenary hearing.

                                3                         A-3059-15T1
     Finally, the judge provided the parties with forty-five days

to complete discovery.          "Written requests," which included both

interrogatories and a demand for production of documents, had to

be made within fifteen days with responses due thirty days after.

When the discovery period concluded, "the parties [were] to contact

the calendar coordinator to schedule the plenary hearing."

     In October 2014, plaintiff sold his interest in the business

known as VG Resources, LLC, for $500,000.              Section 6.8 of the PSA

addressed the "Distribution of Businesses and Business Interests."

Plaintiff took the position that defendant expressly agreed under

Section 6.8 to limit her claims to this business to ten percent

of plaintiff's "share of all future distributions and profits

paid[.]"     According     to    plaintiff,      defendant     agreed   to    this

limitation   in   return   for     not       having   any   "obligation    and/or

liability associated with [this business] at any time in the

future."   Furthermore, plaintiff argued that consistent with this

provision in the PSA, he contributed approximately $259,000 to VG

Resources, LLC, after the divorce.             He also had a dispute with his

partners, which ultimately settled when plaintiff agreed to accept

"a gross sale[s] price of $500,000."

     Defendant viewed her rights under the PSA differently.                    She

filed an Order to Show Cause claiming she was entitled to a share

of the $500,000.    Despite the language in Section 6.8 of the PSA

                                         4                                A-3059-15T1
that limits defendant's putative claim to "ten percent (10%) . .

. of all future distribution and profits," which in this case

would be $50,000, the court ordered plaintiff's counsel to hold

$100,000 in escrow pending the outcome of a plenary hearing.

      The plenary hearing took place over two days on May 7 and 12,

2015.     In addition to the parties, plaintiff called a certified

public accountant "for the purpose of testifying as to what the

basis is with respect to the purchase of Mr. Gulutz's interest in

VG and CNV.     What he received, how . . . the basis was established.

And, also from an accounting standpoint, whether the transaction

would trigger the issuance of a K-1."                 The judge accepted this

witness "as an expert in accounting."                       Defendant called the

attorney      who    represented      her   during    the    dissolution   of   the

marriage, including the negotiation of the PSA.

      The judge made his factual findings and conclusion of law on

September     15,     2015.     The    judge      found   defendant's    testimony

credible.      He based this on his observation of her testimony, and

on "how she answered the questions during the course of the plenary

hearing[.]"         Conversely, he found plaintiff was "not credible."

The   judge    concluded      plaintiff's       answers     were   "evasive,   and[]

sometimes      confrontational."            The     judge     also   characterized

plaintiff's answers to the sale of the business as "split[ting]

hairs."    He gave as an example plaintiff's response distinguishing

                                            5                              A-3059-15T1
between the word "buyout" and "sale."           The judge noted that

plaintiff insisted that "[t]his was no buying out of [his] interest

because another entity owned it" which, the judge explained was

"not true, because his partners bought him out of the entity."

The   judge   concluded   this   was   merely   a   semantic,   legally

inconsequential distinction because "[i]n the end, he did receive

$500,000."

      In construing Section 6.8 of the PSA, the judge rejected

plaintiff's argument that defendant is not entitled to any part

of the $500,000 because it was not "profits and distributions."

According to the judge, acceptance of plaintiff's construction of

the language used in Section 6.8 would mean defendant would "get

nothing from a marital asset[.]"         In the judge's view, this

"[m]akes no sense."

      The judge also found credible the testimony of Eileen Foley,

the attorney who represented defendant during the negotiations of

the terms of the PSA which led to the ultimate divorce judgment.

Of specific relevance here, Ms. Foley testified that defendant

agreed to accept only ten percent of the sale of VG Resources,

which was less than her fair share of this marital asset, "to not

have to make contributions, and[] avoid any liabilities."            The

judge ultimately reached the following conclusion:



                                   6                            A-3059-15T1
            The [c]ourt finds that the defendant agreed
            to take a smaller percentage than what she was
            entitled to, to avoid having to contribute in
            the future.    This was testified to by Ms.
            Foley, her attorney from the underlying
            matrimonial action.     Also, this was the
            credible testimony of the defendant.

            In addition, . . . [the PSA] required it to
            be secured in his will. To interpret the [PSA]
            in a [manner] that supports the plaintiff's
            position would be grossly unfair to the
            defendant. If she was not entitled, why would
            there be . . . language in the [PSA] requiring
            him to provide closing documents?

            In short, the plaintiff's argument is, you
            didn't receive ten percent of any profits or
            distributions, as there were none. And, now
            that I've been bought out, and received a half
            million dollars, you get nothing. Even though
            it was a marital asset.     The [c]ourt finds
            that she is entitled to ten percent.

     Against this factual backdrop, plaintiff now argues that the

judge's decision improperly rewrote the PSA to award defendant a

share of plaintiff's buyout that she was not legally entitled to

receive.    We disagree.        We begin our analysis by reaffirming a

well-settled principle of appellate jurisprudence.             We accord

deference to the Family Court's decisions because of its "special

jurisdiction and expertise," especially "in the field of domestic

relations."      Cesare v. Cesare, 
154 N.J. 394, 412-13 (1998).

Furthermore, the factual findings made by a trial judge "are

binding    on   appeal   when   supported   by   adequate,   substantial,

credible evidence." Id. at 411-12. This deference is particularly

                                     7                            A-3059-15T1
appropriate "when the evidence is largely testimonial and involves

questions of credibility."           Ibid.     (quoting In re Return of

Weapons to J.W.D., 
149 N.J. 108, 117 (1997)).             However, our review

of the court's legal conclusion is de novo because "the trial

court is in no better position than we are when interpreting a

statute or divining the meaning of the law."               D.W. v. R.W., 
212 N.J. 232, 245 (2012).

       Here, we discern no basis to disturb the Family Part Judge's

factual findings.         The judge emphasized that his credibility

findings were influenced by the opportunity he had to observe the

witnesses' testimony, including their demeanor.                  The judge's

conclusion that defendant was entitled to receive ten percent of

the $500,000 plaintiff received from his disposition of a marital

asset was supported by a plain reading of the language negotiated

by the parties in the PSA and incorporated by the court in the

JOD.

       In reviewing a contract, a court must enforce the intent of

the parties under the express terms of the contract, considering

both   its   underlying    purpose   and     based   on   the   circumstances

surrounding its formation.       Cypress Point Condo. Ass'n v. Adria

Towers, L.L.C., 
226 N.J. 403, 415 (2016).            We are also obliged to

effectuate each provision of a contract in accordance with its

plain meaning and avoid rendering any provision superfluous or

                                     8                                A-3059-15T1
simply surplusage.   Highland Lakes Country Club & Cmty. Ass'n v.

Franzino, 
186 N.J. 99, 115-16 (2006).

     The conclusion reached by the Family Part here is in full

accordance with these principles.     We discern no legal basis to

disturb it.   Plaintiff's remaining arguments lack sufficient merit

to warrant discussion in a legal opinion.   R. 2:11-3(e)(1)(E).

     Affirmed.




                                 9                          A-3059-15T1