MELISSA YOUNG VS. KENNETH YOUNG (FM-03-1604-10, BURLINGTON COUNTY AND STATEWIDE)

M
                                NOT FOR PUBLICATION WITHOUT THE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.
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      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


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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.


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      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.
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                                        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


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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.


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      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


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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




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                                        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.




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