L.L. v. M.V.

• Decision Date: 12 August 2020
• Docket Number: DOCKET NO. A-2281-18T2
• Parties: L.L., Plaintiff-Respondent, v. M.V., Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

L.L., Plaintiff-Respondent,
v.
M.V.¹, Defendant-Appellant.

DOCKET NO. A-2281-18T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted May 18, 2020
August 12, 2020

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1788-14.

Shannon Garrahan, attorney for appellant.

Townsend, Tomaio & Newmark, LLC, attorneys for respondent (Kevin Wei-Kwan Ku, of counsel and on the brief; Daniel Pelic, on the brief).

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PER CURIAM

In this post-judgment dissolution matter, defendant M.V. appeals from the Family Part's December 21, 2018 order that the trial court entered after a plenary hearing regarding the parties' Property Settlement Agreement (PSA) as it related to the distribution of the parties' jointly owned real estate, and a subsequent separate agreement that addressed the sale of plaintiff L.L.'s business to defendant. On appeal, defendant argues that the court's determination was not supported by the evidence, its decision resulted in "a better agreement" for plaintiff than she bargained for, it erred by not awarding "defendant a retroactive increase in child support," or certain credits to which defendant was entitled, it impermissibly amended a final restraining order (FRO) between the parties, and it abused its discretion by awarding attorneys' fees to plaintiff and not to defendant. For the reasons that follow, we affirm in part, but remand two issues to the trial court relating to credits to which defendant was entitled and to the court's award of attorneys' fees.

The parties were married in 1992 and they had twins born in January 2001. During the marriage, the parties purchased two residential properties, the marital home in Ramsey and a two-family home in Hackensack as an investment property.

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While still married, plaintiff purchased a landscaping company known as Anchor Landscaping and Anchor Property Management (Anchor), which she initially owned and operated by herself from the Ramsey property. In 2007, after plaintiff asked for defendant's assistance, defendant handled Anchor's field management and was the "[f]oreman for the business." In February 2014, plaintiff filed for divorce. A month later, without counsel, the parties signed a "Co-ownership Work Responsibility and Compensation Agreement . . . in the Joint Ownership of Anchor," in which plaintiff purportedly conveyed ownership of one half of Anchor to defendant.

Two months later, the parties entered into their PSA, also without counsel. The PSA provided for plaintiff to remain in the Ramsey property and defendant in the Hackensack property, with each agreeing to pay all expenses associated with the home they were living in. The PSA did not contain a provision regarding the transfer of title as to either property or anything about the ownership of Anchor. It did state that the parties agreed the equity in both properties had a value of $550,000. The PSA also referenced commercial trucks and trailers used by Anchor and stated that they would be jointly owned but title would be under Anchor's name.

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The PSA also stated that each party would keep the vehicles that were under their control. The parties also "agree[d] to waive any rights that each may have" in each other's pension and retirement accounts. Moreover, it did not address alimony or child support. The PSA did provide for attorneys' fees and reasonable costs to be paid to the "prevailing party" if "a dispute [arose] regarding the enforcement of this agreement." On May 7, 2014, the court entered a default judgment of divorce (JOD) that incorporated the parties' PSA.

Later that month, and again without counsel, the parties entered into another agreement they called the "Sale of Anchor Property Management" agreement (Agreement), which was to supersede their March 2014 agreement. Through the Agreement, defendant promised to purchase Anchor from plaintiff for $115,500, which would be payable to plaintiff at the rate of $2000 per month over a fifty-five-month period. The Agreement also provided for defendant to continue to operate from the Ramsey property, but obligated him to pay plaintiff rent at the rate of $900 per month.

The Agreement also stated, among other things, that: Defendant would receive a credit of $4000 that would "be deducted from [the] end of [the] loan which represent[ed] the portion of the contracts that were paid in full at the start of the 2014 season"; and plaintiff was "guaranteed a minimum of [ten] hours [of

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employment] . . . to be paid weekly at a rate of $20 per hour as long as [plaintiff] [held] the loan against the business. Time sheets [would] be submitted for each week's work to be paid in cash . . . in [plaintiff's] personal account." It further stated that all of Anchor's vehicles, equipment, and trailers would be transferred to defendant's name, and they would serve as collateral against the purchase payments so in the event that any of the business, income, or rent payments were not made, plaintiff could seize those assets and auction them off for payment.

The Agreement obligated plaintiff to train defendant for 120 hours, and, by May 30, 2014, to remove her name from the business bank account. All incomes that the business received for snow blowing rendered between 2013 and 2014 were to be shared equally between the parties, and any checks received after June 1, 2014, "that represent[ed the first] quarter billing of all business estimated and booked prior to June 1," would be shared with plaintiff receiving 15% of the payments. Any "business booked for snow in 2013 and 2014" and sums received from that would be payable to plaintiff. The Agreement also provided that plaintiff would "be released and held harmless for all . . . [of] Anchor['s] debt"; and that she would not solicit Anchor's customers.

The parties also agreed, as to other debts, that plaintiff would assume a certain Chase credit card debt. Additionally, that by May 30, 2014, defendant

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would remove his name from their joint personal account and plaintiff would sell a 2005 Chevy truck to defendant for one dollar.

Thereafter, defendant made the first two payments towards Anchor's purchase that were due in June and July 2014 but stopped making payments beginning in August 2014. The parties then became embroiled in disputes over their agreements, which resulted in years of litigation.

In 2015, the parties filed cross complaints against each other under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and obtained FROs against each other. The FRO against plaintiff barred her from both the Ramsey and Hackensack properties. That same FRO granted temporary custody of the children to defendant and granted plaintiff supervised visitation but made no provision for child support.

In December 2015, plaintiff filed a motion seeking, among other things, emergency financial relief in the form of alimony and an award of counsel fees and costs. The court denied the motion because there was no provision for such payment in the parties' PSA, and at the final hearing, plaintiff waived any claim for alimony.

Thereafter, plaintiff served a subpoena on defendant's bank, and defendant filed a motion seeking, among other things, to find plaintiff in violation of

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litigant's rights for serving the subpoena and attempting to obtain defendant's confidential information. Plaintiff filed a cross-motion seeking a plenary hearing and requesting emergency financial assistance in the form of a lump sum equitable distribution payment.

After considering the parties' March 18, 2016 oral arguments, the court placed its findings on the record. The court found that plaintiff was in violation of litigant's rights by prematurely issuing the subpoena without prior court approval but rejected defendant's claim that the information sought could never be used in this case. It also denied defendant's request for sanctions. As to plaintiff's cross-motion, the court again denied plaintiff's claim for emergency financial assistance. However, it ordered a plenary hearing as to the equitable distribution of the parties' properties and Anchor.

Prior to the March 18 order, on March 15, 2016, defendant filed a motion for plaintiff to pay child support in accordance with the Child Support Guidelines. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, www.gannlaw.com (2020) (Guidelines). In the motion, defendant also requested that he be allowed to purchase the Ramsey property or to allow him to sell the Ramsey property through a power of attorney on behalf of plaintiff, as plaintiff had not paid the mortgage since May 2015.

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On May 27, 2016, the court considered the parties' oral arguments and then placed its decision on the record. The court denied without prejudice the request to sell the Ramsey property and ordered plaintiff to pay $20 per week in child support. In doing so, the court noted that the parties did not provide the financial information needed to determine child support, which made it difficult for it to make a decision and to understand how plaintiff's income was only $13,000 a year as she alleged. The court further noted that plaintiff received $140 a month from public assistance and $194 a month in food stamps. Based on that information, the court deviated from the Guidelines' award of $41 per week and, instead, awarded defendant $20 a week for child support because plaintiff was existing only on "a general assistance allotment of $140 a month."

In the meantime, the previously ordered plenary hearing was repeatedly adjourned for a variety of reasons....