Grange v. Grange

• Decision Date: 22 June 1978
• Citation: 160 N.J.Super. 153,388 A.2d 1335
• Parties: Irwin P. GRANGE, Plaintiff-Respondent, v. Muriel E. GRANGE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 153

160 N.J.Super. 153

388 A.2d 1335

Irwin P. GRANGE, Plaintiff-Respondent, v. Muriel E. GRANGE, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued June 6, 1978.

Decided June 22, 1978.

James B. Convery, Perth Amboy, for defendant-appellant (Convery & Convery, Perth Amboy, attorneys; Clark W. Convery, Perth Amboy, on the brief).

Harvey Blaustein, Metuchen, for plaintiff-respondent (Bressler & Blaustein, Metuchen, P. A., attorneys).

Before Judges LORA, SEIDMAN and MILMED.

PER CURIAM.

In April 1977 plaintiff, who then resided in New Jersey (he has since moved to Michigan), filed a complaint for divorce. Defendant, now a resident of Florida, filed an answer and counterclaim. Each sought, in addition to other relief, the equitable distribution of all marital property. By letter dated August 24, 1977 plaintiff, through his attorney, advised defendant's attorney that the subdivision complex containing the condominium at 327 Alpine Court, Stanhope, New Jersey, in which the parties had formerly resided, was the subject of a foreclosure action and requested that defendant cooperate in selling the same. The letter set forth that plaintiff had obtained an appraisal indicating a negative equity in the property of $5,306.74, and that he could not afford to continue to maintain three residences, pay Pendente lite support and defendant's counsel fees.

On October 21, 1977 plaintiff moved to compel defendant to execute the necessary documents to convey title to the Stanhope premises to Homequity, Inc. (which had appraised the property at $29,500 with a resultant negative equity of $5,306.74), with the issue of the net loss to be reserved for the final hearing.

On the return day of the motion plaintiff's counsel argued that "where equitable distribution is before the Court, that should the wife execute the documents, then that doesn't mean by any token that she's accepting the loss. She has the right, obviously, to make an appraisal of the property." The judge's response was, "I think we have a duty here on equitable distribution, particularly when nobody is in the house to minimize losses. It appears to have been a very bad investment." Defendant's counsel took the position that his client was entitled to an independent appraisal of the property. The judge thereupon granted the motion for a sale and directed defendant toexecute the documents, but withheld the order for ten days to enable the wife to obtain her own appraisal, if she so desired. Defendant, however, did not submit any appraisals to the court.

The judge noticed the parties for a hearing on January 6, 1978 to settle the form of order. Plaintiff requested an adjournment and defendant states the matter was thereafter heard In camera on January 27, 1978. Plaintiff says it was an In camera conference during which arrangements suitable to all parties were negotiated and that it was agreed that defendant would have protection as and for the issues of equitable distribution if the issues were expressly reserved for final hearing and if plaintiff agreed not to dispose of or encumber real estate owned by him in Florida (with defendant as tenants by the entirety) and in Michigan. There is no transcript of what transpired.

In any event, the judge issued an order dated February 1, 1978 ordering Homequity, Inc. to furnish copies of appraisals referred to in "Preliminary Closing Statement" to defendant's counsel and providing that defendant shall have the right to appraise the marital dwelling within 14 days of January 27, 1978, and that the marital dwelling shall be sold pursuant to said closing statement filed with the court on October 17, 1977 within 14 days of January 27, 1978 without prejudice to defendant's "right to challenge said sale as to purchase price and/or seek equitable distribution based upon said Fair Market Value of said wanted dwelling." The order further restrained plaintiff from the sale or encumberance of the Michigan and Florida properties pending equitable distribution of the assets of the marriage.

On February 9, 1978 defendant filed a proposed order to show cause why the February 1 order should not be vacated along with an affidavit by defendant's attorney stating that he had been advised that similar units in the complex were being offered for sale at a minimum price of $39,000. Defendant did not, however, submit an appraisal of the unit in question. She states that her attorney had subpoenaed witnesses for the return day, March 23, 1978, and served a notice to produce upon plaintiff in order to present her claim that the value of the property exceeded that advanced by plaintiff but they were advised the court did not intend to take oral testimony concerning the value of the property.

Defendant then sought to introduce an affidavit by one Louis Ettore, an employee of the designated sales agent of the complex, stating that the most recent sale of a similar unit therein was at $44,790. The judge, however, ruled that the affidavit was untimely filed and therefore would not admit it into evidence. No appraisal of the unit in question was submitted by defendant.

The judge then by order dated ...