NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4751-18
MELISSA YOUNG,
Plaintiff-Respondent,
v.
KENNETH YOUNG,
Defendant-Appellant. _______________________
Submitted December 16, 2020 – Decided February 11, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1604-10.
Jonathan J. Sobel, attorney for appellant.
Ted M. Rosenberg, attorney for respondent.
PER CURIAM
In this post-divorce judgment dispute, defendant appeals Family Part
orders denying him: return of pre-marital property; income from rental property; value of a mortgage line of credit; credit against plaintiff's share of his law
practice; and reimbursement or credits for payments made for plaintiff's life
insurance premiums and for his children's overnight camp and religious school
expenses. We affirm in part and reverse in part.
On July 20, 2012, following trial, the court issued an Amended Dual Final
Judgment of Divorce (ADFJOD) ending the parties' nearly fifteen-year
marriage. The ADFJOD detailed the parties' respective obligations pertaining
to equitable distribution of property; offsets and credits; alimony and retroactive
relief; tax returns; plaintiff's co-habitation; child custody, parenting, and support
for the parties' two children; life insurance; and counsel fees.
The parties thereafter engaged in extensive post-judgment motion
practice, culminating in defendant's appeal of November 2, 2018 and May 23,
2019 orders. (Pa159-160). We separately address defendant's challenges.1
1 Plaintiff's argument that defendant's appeal is untimely is without merit. The November 2, 2018 order was not a final judgment because issues involving sanctions, accounting, alimony, child support arrears, and counsel fees were reserved pending discovery. All outstanding matters were not resolved until the May 23, 2019 order. Defendant filed his appeal forty-one days thereafter on July 3, 2019, within the forty-five-day time limit prescribed by Rule 2:4-1. A-4751-18 2 Andy Warhol Painting
Defendant's October 4, 2018 cross-motion to plaintiff's motion seeking
various forms of relief sought a return of his pre-marital personal property,
specifically an Andy Warhol painting. Defendant argues the court erred in its
November 2, 2018 eight-page order (November 2 order), which set forth its
reasoning, declining his request. He claims the court failed to "make specific
findings as to why [it] believed the personal property should not be returned."
We disagree.
The ADFJOD declared that the parties' personal property claims were to
be submitted to binding arbitration within sixty days of the judgment. The
arbitration was never held. Over six years elapsed between the 2012 ADFJOD
and defendant's 2018 cross-motion. In denying defendant's request, the court
reasoned that the "issue of personal property was decided at the time of divorce.
As such, the [c]ourt will not now entertain the relief requested by [defendant]
six years later." Albeit brief, this finding was sufficient.
Defendant presented no valid argument why his property claim was not
arbitrated or why he waited so long to seek judicial relief. See Knorr v. Smeal,
178 N.J. 169, 180-81 (2003) (holding laches is "invoked to deny a party
enforcement of a known right when the party engages in an inexcusable and
A-4751-18 3 unexplained delay in exercising that right to the prejudice of the other party . . .
and the prejudiced party acted in good faith believing that the right h ad been
abandoned."). Defendant's six-year delay indicates of waiver of his claim to the
property. See id. at 177 ("Waiver is the voluntary and intentional relinquishment
of a known right."). The court's ruling is supported by the record and was not
an abuse of its discretion. See Gnall v. Gnall, 222 N.J. 414, 428 (2015).
Plaintiff's Life Insurance
Defendant's cross-motion also sought credit for the $4,875 he paid for
plaintiff's life insurance premiums. The November 2 order denied the request.
(Da. 164). He argues the court erred and failed to make specific findings in its
ruling. We disagree.
The ADFJOD provided that while defendant may maintain plaintiff's
"present [insurance] coverage, [he] has no further obligation[] towards the cost
of [the coverage] and going forward she is fully responsible for the maintenance
of her . . . insurance coverage." 2 Thus, the court's detailed order determined that
based on the ADFJOD, defendant was not entitled to a credit.
2 The ADFJOD provided plaintiff would obtain a $250,000 life insurance policy for the children's benefit with defendant named as Trustee.
A-4751-18 4 There is no cause to disturb the court's order. Defendant cannot require
plaintiff to give him a credit or reimburse him for payments that he voluntary
made. Said differently, he cannot obtain relief from plaintiff under a judgment
order that she did not violate. Moreover, the parties made no agreement after
entry of the ADFJOD wherein plaintiff agreed to repay defendant for insurance
payments he made.
Mortgage Line of Credit /Rental Income
Defendant's cross-motion sought credit for: $6000, his fifty percent share
of plaintiff's use of a line of credit on the marital home; and $5300,3 half of the
rental income she retained from the parties' Philadelphia investment property .
The ADFJOD provided that the $6000 was to be paid from the future sale of the
marital home, and the $5300 would offset plaintiff's $13,000 share of
defendant's law practice.
Considering the ADFJOD was entered after a contested trial, defendant
contends the court mistakenly relied upon the "voluntary nature of settlement
agreements," without detailing its basis for finding that the parties consented to
3 Following a motion for reconsideration, a Second Amended Dual Final Judgment of Divorce was issued, which among other provisions reduced the rental income defendant was entitled to receive to $3700 and provided that the amount owed will be paid from the property's sale. A-4751-18 5 the credit and offset. He also argues his six-year delay in seeking relief was
justified, and because plaintiff did not change her position in reliance on the
delay, application of laches was not appropriate, and equity favors his requests.
Finally, defendant asserts the court did not make adequate factual findings.
We agree with defendant's contention that the court's reference to the
parties' reaching a consensual agreement was misplaced as there was no
indication in the record that the parties did so. These claims were determined by
the court following a contested trial. We, nevertheless, do not part company
with the court's determination that defendant is not entitled to credits for the line
of credit and rental income based upon laches. Defendant provided no reason
why he waited over six years to enforce the ADFJOD regarding these claims.
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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-4751-18
MELISSA YOUNG,
Plaintiff-Respondent,
v.
KENNETH YOUNG,
Defendant-Appellant. _______________________
Submitted December 16, 2020 – Decided February 11, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1604-10.
Jonathan J. Sobel, attorney for appellant.
Ted M. Rosenberg, attorney for respondent.
PER CURIAM
In this post-divorce judgment dispute, defendant appeals Family Part
orders denying him: return of pre-marital property; income from rental property; value of a mortgage line of credit; credit against plaintiff's share of his law
practice; and reimbursement or credits for payments made for plaintiff's life
insurance premiums and for his children's overnight camp and religious school
expenses. We affirm in part and reverse in part.
On July 20, 2012, following trial, the court issued an Amended Dual Final
Judgment of Divorce (ADFJOD) ending the parties' nearly fifteen-year
marriage. The ADFJOD detailed the parties' respective obligations pertaining
to equitable distribution of property; offsets and credits; alimony and retroactive
relief; tax returns; plaintiff's co-habitation; child custody, parenting, and support
for the parties' two children; life insurance; and counsel fees.
The parties thereafter engaged in extensive post-judgment motion
practice, culminating in defendant's appeal of November 2, 2018 and May 23,
2019 orders. (Pa159-160). We separately address defendant's challenges.1
1 Plaintiff's argument that defendant's appeal is untimely is without merit. The November 2, 2018 order was not a final judgment because issues involving sanctions, accounting, alimony, child support arrears, and counsel fees were reserved pending discovery. All outstanding matters were not resolved until the May 23, 2019 order. Defendant filed his appeal forty-one days thereafter on July 3, 2019, within the forty-five-day time limit prescribed by Rule 2:4-1. A-4751-18 2 Andy Warhol Painting
Defendant's October 4, 2018 cross-motion to plaintiff's motion seeking
various forms of relief sought a return of his pre-marital personal property,
specifically an Andy Warhol painting. Defendant argues the court erred in its
November 2, 2018 eight-page order (November 2 order), which set forth its
reasoning, declining his request. He claims the court failed to "make specific
findings as to why [it] believed the personal property should not be returned."
We disagree.
The ADFJOD declared that the parties' personal property claims were to
be submitted to binding arbitration within sixty days of the judgment. The
arbitration was never held. Over six years elapsed between the 2012 ADFJOD
and defendant's 2018 cross-motion. In denying defendant's request, the court
reasoned that the "issue of personal property was decided at the time of divorce.
As such, the [c]ourt will not now entertain the relief requested by [defendant]
six years later." Albeit brief, this finding was sufficient.
Defendant presented no valid argument why his property claim was not
arbitrated or why he waited so long to seek judicial relief. See Knorr v. Smeal,
178 N.J. 169, 180-81 (2003) (holding laches is "invoked to deny a party
enforcement of a known right when the party engages in an inexcusable and
A-4751-18 3 unexplained delay in exercising that right to the prejudice of the other party . . .
and the prejudiced party acted in good faith believing that the right h ad been
abandoned."). Defendant's six-year delay indicates of waiver of his claim to the
property. See id. at 177 ("Waiver is the voluntary and intentional relinquishment
of a known right."). The court's ruling is supported by the record and was not
an abuse of its discretion. See Gnall v. Gnall, 222 N.J. 414, 428 (2015).
Plaintiff's Life Insurance
Defendant's cross-motion also sought credit for the $4,875 he paid for
plaintiff's life insurance premiums. The November 2 order denied the request.
(Da. 164). He argues the court erred and failed to make specific findings in its
ruling. We disagree.
The ADFJOD provided that while defendant may maintain plaintiff's
"present [insurance] coverage, [he] has no further obligation[] towards the cost
of [the coverage] and going forward she is fully responsible for the maintenance
of her . . . insurance coverage." 2 Thus, the court's detailed order determined that
based on the ADFJOD, defendant was not entitled to a credit.
2 The ADFJOD provided plaintiff would obtain a $250,000 life insurance policy for the children's benefit with defendant named as Trustee.
A-4751-18 4 There is no cause to disturb the court's order. Defendant cannot require
plaintiff to give him a credit or reimburse him for payments that he voluntary
made. Said differently, he cannot obtain relief from plaintiff under a judgment
order that she did not violate. Moreover, the parties made no agreement after
entry of the ADFJOD wherein plaintiff agreed to repay defendant for insurance
payments he made.
Mortgage Line of Credit /Rental Income
Defendant's cross-motion sought credit for: $6000, his fifty percent share
of plaintiff's use of a line of credit on the marital home; and $5300,3 half of the
rental income she retained from the parties' Philadelphia investment property .
The ADFJOD provided that the $6000 was to be paid from the future sale of the
marital home, and the $5300 would offset plaintiff's $13,000 share of
defendant's law practice.
Considering the ADFJOD was entered after a contested trial, defendant
contends the court mistakenly relied upon the "voluntary nature of settlement
agreements," without detailing its basis for finding that the parties consented to
3 Following a motion for reconsideration, a Second Amended Dual Final Judgment of Divorce was issued, which among other provisions reduced the rental income defendant was entitled to receive to $3700 and provided that the amount owed will be paid from the property's sale. A-4751-18 5 the credit and offset. He also argues his six-year delay in seeking relief was
justified, and because plaintiff did not change her position in reliance on the
delay, application of laches was not appropriate, and equity favors his requests.
Finally, defendant asserts the court did not make adequate factual findings.
We agree with defendant's contention that the court's reference to the
parties' reaching a consensual agreement was misplaced as there was no
indication in the record that the parties did so. These claims were determined by
the court following a contested trial. We, nevertheless, do not part company
with the court's determination that defendant is not entitled to credits for the line
of credit and rental income based upon laches. Defendant provided no reason
why he waited over six years to enforce the ADFJOD regarding these claims.
Defendant's claims are denied for the same reasons that laches applied to deny
defendant's claim to the Warhol painting.
Law Practice Share
The ADFJOD granted plaintiff $26,000 as her equitable share of
defendant's law practice. A March 20, 2015 court order granted plaintiff's
motion to enforce payment of her share, giving defendant forty-five days to
make payment. On March 29, 2015, the court denied defendant's motion for
reconsideration. A year later when defendant failed to pay, plaintiff obtained a
A-4751-18 6 March 11, 2016 order entering a judgment against defendant for $26,000. In
addition, the order noted "[t]o the extent [d]efendant establishes that he is
entitled to a credit, said credit will be applied against [p]laintiff's spousal support
arrears."
In September 2018, when plaintiff moved to enforce ADFJOD terms, she
sought sanctions against defendant for not paying the $26,000. In response,
defendant cross-moved to obtain a $24,441.80 credit for an alleged overpayment
to plaintiff from the sale of the marital property because the tax liability was
applied to his share of the proceeds and not plaintiff's share. To support his
claim, defendant submitted a HUD-1 settlement sheet from the property's sale
indicating that after payment of an IRS lien and lien payoff, totaling
$173,797.67, and other charges and credits, plaintiff received $213,335.51. The
November 2 court order denied defendant's request because he did not prove
how much he actually paid in taxes on the sale. The court held:
[Defendant]'s request to be credited $24,441.80 representing additional sums paid to [plaintiff] from the sale of parties' marital property is DENIED. Again[,] the issue of the sale of the marital home was addressed in previous [c]ourt [o]rders. Further, [defendant] provides no documentation of the $24,441.80 that he is entitled to. The only thing [defendant] provides is a copy of the settlement sheet for the former marital home.
A-4751-18 7 Left unresolved in the November 2 order and a subsequent May 1, 2019
consent order, was enforcement of the $26,000 judgment. The court addressed
the judgment in its May 23, 2019 order, stating it would remain in effect unless
the parties agreed otherwise. The order further stated that the court denied
defendant's credits request in its November 2 order and that there was no
"adequate basis to re-open its prior decision."
Defendant argues "it is clear [he] was entitled to the [$24,441.80] credit"
because the March 11, 2016 order provided that if he was entitled to a credit it
would be offset against the $26,000. Defendant contends the "settlement sheet
. . . delineat[ing] the amount of the sale" supports his position that he is entitled
to a credit. According to defendant, the court erred and failed to state the reasons
for its decision. We disagree.
The trial court did not abuse its discretion in refusing to offset the tax
liability arising from house sale as defendant did not provide proof. Defendant
was only able to receive a credit if he provided the proper proofs. See Rothman
v. Rothman, 65 N.J. 219, 233 (1974) (holding a trial court's decision regarding
the eligibility and value of assets for equitable distribution are subject to
providing adequate credible evidence). The HUD-1 settlement sheet did not
establish his right to a credit or offset due to his additional tax liability. Because
A-4751-18 8 he failed to produce any evidence of the liability, the court did not abuse its
discretion in declining to grant him an offset from the $26,000 judgment.
Camp and Religious School Expenses
The trial court's March 20, 2015 order, in accordance with the ADFJOD,
granted defendant's requests for reimbursement or credits of the payments he
made for the parties' children's overnight camp and religious school expenses.
However, the court reserved judgment on the amount to be reimbursed or
credited, pending defendant's submission of appropriate proofs. Defendant's
proofs initially included expenses for defendant's child not of his marriage to
plaintiff and did not deduct "for scholarship or other payments by third parties."
A year later, the court's March 11, 2016 order granted plaintiff's motion to deny
"[d]efendant any credits [for] children's summer camp and religious school."
Noting that defendant had not supplied an appropriate accounting in the year
since the March 20, 2015 order, the court determined that defendant waived his
rights.
Defendant, however, continued to seek reimbursement or credit for his
payments in an October 2018 cross-motion. The court denied his application in
its November 2, 2018 order, reasoning his request was "another motion for
A-4751-18 9 reconsideration from prior [c]ourt orders . . . [of] May 20, 2015 and . . . March
11, 2016" and remarking "it [was] now over three years since the first [o]rder[.]"
As for defendant's pre-2015 payments, we discern no cause to disturb the
court orders denying his claim for reimbursement or credits. Despite its brevity,
the March 11, 2016 and November 2, 2018 orders adequately explained that
defendant's relief was denied because he did not timely submit an appropriate
accounting of his claim and thereby waived it.
We do agree with defendant's argument that the court erred in denying his
request for reimbursement or credits for payments from 2015 to 2017. The May
20, 2015 and March 11, 2016 orders addressed pre-2015 expenses; they did not
bar future applications for reimbursement or credits for camp and religious
school payments. The post-2015 payments defendant seeks reimbursement or
credits for, must be considered by the court. We take no position as to whether
his submitted proofs were sufficient or if plaintiff has meritorious defenses to
his claim.
Affirmed in part, reversed in part, and remanded for proceedings
consistent with this opinion. We do not retain jurisdiction.
A-4751-18 10