ROBERT W. BUSCH v. COLLEEN BUSCH

NOT FOR PUBLICATION WITHOUT THE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-3545-16T4

ROBERT W. BUSCH,

        Plaintiff-Respondent,

v.

COLLEEN BUSCH,

     Defendant-Appellant.
________________________________

              Submitted March 21, 2018 – Decided April 12, 2018

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hunterdon
              County, Docket No. FM-10-0001-15.

              Carter, Van Rensselaer and Caldwell, attorneys
              for appellant (William J. Caldwell, on the
              brief).

              The Deni Law Group, LLC, attorneys for
              respondent (Allison M. Roberts, on the brief).

PER CURIAM

        This appeal involves the parties' post-divorce dispute over

responsibility for pre-divorce credit card debt.                The debt is the

sum     of   the   balances    on   two    Discover   Card   accounts.       After
considering     defendant's        initial    motion     and    her     motion   for

reconsideration,       the   trial    court    entered    an    order     requiring

plaintiff to reimburse defendant in monthly installments for $9867

of the balances.       Defendant appeals from that order.               We affirm.

       Married in 2004, the parties separated in June 2014 and

divorced in June 2016.         The parties' Final Judgment of Divorce

(FJOD) incorporated a Matrimonial Settlement Agreement (MSA).

       The   typewritten     MSA    provided    defendant      would     waive   her

interest in the marital residence and leave the marriage "debt

free."   The MSA does not itemize the marital debt.               This omission,

coupled with numerous handwritten edits and insertions to the

typewritten MSA, create some ambiguity concerning the amount of

marital debt that existed when the parties divorced.

       Nonetheless, when questioned by defendant's attorney at the

divorce hearing, plaintiff acknowledged that "[o]ne of the major

considerations . . . in terms of the alimony was the fact that [he

was]   agreeing   to    take   on     all    matrimonial       debt."      He    also

acknowledged the debt he was assuming included the house and credit

cards; and that with the exception of some limited debt defendant

was assuming, such as "a car loan and a credit card that she's

opened since [the separation]," she was "supposed to leave th[e]

marriage debt free." Plaintiff agreed that "whatever [the] numbers

might be . . ., if it turns out that there is more or less

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matrimonial debt . . . than is actually recited, [he would] still

[be] responsible for making payments on it."

     Two    weeks    after   the   divorce,      defendant   sent    plaintiff

statements from two Discover Card accounts: the first covering the

period from September 14, 2013 through October 13, 2013, with a

$9987.55 balance; the second covering a period from June 14, 2014

through July 13, 2014, with an $8948.16 balance.              When plaintiff

ignored this and two additional demands that he pay the Discover

Card debt, defendant filed a motion to compel him to do so.1

     In a supporting certification, defendant averred she had

"provided    all    the   information       available   regarding   our     joint

[D]iscover [C]ard."       Plaintiff responded that in 2014, when he and

defendant divided "things such as furniture and credit cards,"

defendant took responsibility for the Discover Card.                He claimed

the card was in her name alone and used solely by her.               Plaintiff

asserted, "I never had this card, and it was not included as

marital credit card debt in the MSA."             He insisted a handwritten

notation on the MSA limited his responsibility to $12,500 of credit

card debt.




1
   Defendant's motion also sought enforcement of other MSA
provisions. On this appeal we are concerned only with the credit
card debt.


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     In reply, defendant explained there were two accounts because

"they were reissued due to earlier fraudulent activity." 2       She

insisted the FJOD required plaintiff to assume responsibility for

all marital debt.

     Unable to determine if the Discover Card statement balances

were marital debt, the trial court resolved the problem by entering

an order that included this provision:

          [Defendant's request] that the [c]ourt direct
          the [p]laintiff to reimburse [d]efendant the
          sum of $742 for the Discover cards and to pay
          the balance in full of the Discover [C]ards
          is [granted], as modified. If there is proof
          that, before signing the MSA, [plaintiff] was
          supplied with the Discover [C]ard statements
          or other documentation demonstrating that
          balances existed on the accounts at the time
          of separation, he is responsible for this
          debt. If there is no proof that he was ever
          supplied with this information, he is not
          responsible. [Defendant] shall have 14 days
          to supply to the court proof that [plaintiff]
          was supplied with the information before the
          MSA was executed. If she fails to supply it,
          he shall not be responsible for the debt. If
          she does supply it, [plaintiff] shall have
          seven days to advise the court if he contests
          the documentation supplied and/or requests a
          plenary hearing regarding the proofs.     The
          court will then decide which party is
          responsible for this debt.




2
  Defendant actually sent plaintiff four account statements.
Although two were presumably the replacement accounts following
the fraudulent activity, defendant did not explain why there were
two separate Discover Card accounts in her name.

                                 4                          A-3545-16T4
     The record is unclear as to what, if anything, defendant

provided to the court in response to its order.                      Nearly three

months after the court entered the order, defendant moved for

reconsideration.           Although defendant's motion was untimely, the

trial court exercised its discretion and considered.                    Defendant

presented to the court, among other things, plaintiff's 2014 Case

Information Statement (CIS).            In the section entitled "Statement

of Liabilities," plaintiff listed the amount owed on a Discover

Card as $9867.           The CIS form included this direction: "if you

contend liability should not be shared, state reason."                  Plaintiff

made no such contention.

     Plaintiff cross-moved to deny defendant's reconsideration

motion.   Among other allegations, plaintiff asserted defendant had

used the Discover Card for her business.                   He pointed out a

reference       in   the    MSA   requiring   the   parties    "be    solely   and

exclusively      responsible      for   the   repayment   of   such    individual

credit card debt accrued in their own names."

     In     a    reply     certification,     defendant    repeated      and   re-

emphasized the MSA stated she would leave the marriage "debt free."

She asserted she had bargained away her claim for higher alimony

and a share of the matrimonial residence in return for plaintiff's

agreement to assume all marital debt.



                                         5                                A-3545-16T4
     The trial court disposed of the motion in paragraphs two and

three of its March 15, 2017 order.       The paragraphs provided:

               [Defendant's request] that the court
          direct [p]laintiff to reimburse [d]efendant
          for all payments made on the two Discover
          [C]ards since the date of divorce is [denied.]

               [Defendant's request] that the court
          direct the [p]laintiff to pay the balance of
          the two Discover [C]ards and provide proof of
          such payments is [granted], as modified.
          [Defendant] shall be responsible for payment
          of all the Discover credit card debt.
          [Plaintiff] shall reimburse [defendant] for
          $9,867 of this debt. He shall make payments
          to [defendant] at a rate of $100 per month
          until $9,867 is paid in full, with the first
          payment to be made in March 2017.

     On appeal, defendant asserts the trial court misapplied the

terms of the MSA as well as the parties' intent, which plaintiff

acknowledged during the hearing.       Plaintiff counters that both the

terms of the MSA and the parties' intent are clear and unequivocal.

Plaintiff contends, alternatively, if an ambiguity exists, it must

be resolved by way of a plenary hearing.      Plaintiff has not cross-

appealed from the trial court's final order.

     We affirm, substantially for the reasons expressed by the

trial court in its written decisions accompanying its orders.          We

add only that the trial court misinterpreted neither the MSA nor

the intentions of the parties.     Rather, the MSA's omission of an




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itemization of credit card debt foreshadowed future disputes about

what was included or excluded.

      In its order disposing of defendant's initial motion, the

trial court provided her with an opportunity to prove that the

amount owed on the Discover Cards was marital debt.                    Plaintiff's

CIS   proved    the   issue   to   the       extent    of   the   debt   plaintiff

acknowledged in that document.           In contrast, defendant failed to

demonstrate the remaining money owed on the Discover Cards was

marital debt.     The monthly statements were not dispositive.                  They

could have been incurred for the debt related to defendant's

business.      Although defendant did not deny the credit cards had

always been in her name, she did not provide any statements

identifying the items she had used the cards to purchase.                         She

could have used the cards for business expenses, as claimed by

plaintiff.

      Defendant    produced   no   evidence       on    the   motion     record    to

establish the remaining credit card debt was marital debt.                    Given

the absence of any proof on the issue, we cannot conclude the

court erred by denying in part defendant's motion to compel

plaintiff to pay the entire credit card balances.

      Affirmed.




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