Pelow v. Pelow
| Citation | 693 A.2d 564,300 N.J.Super. 634 |
| Parties | Regina PELOW, Plaintiff, v. Frank A. PELOW, Defendant. |
| Decision Date | 08 November 1996 |
| Court | Superior Court of New Jersey |
Brenda M. Helt, Holmdel, for plaintiff.
Valerie Hemhauser, Edison, for defendant.
HAYSER, J.T.C., temporarily assigned.
The issue presented is whether the court may order, under the circumstances in this case, the sale, pendente lite, of real property held by the parties as tenants by the entirety. Resolution of this issue requires consideration as to the continued application of the holding in Grange v. Grange, 160 N.J.Super. 153, 388 A.2d 1335 (App.Div.1978).
Plaintiff filed a complaint for divorce on March 13, 1996. Defendant filed an answer and counterclaim on May 15, 1996. In addition to other relief, each sought the equitable distribution of all property acquired during marriage, both real and personal.
On October 18, 1996, plaintiff filed a motion seeking, among other things, an order requiring the defendant to assume sixty-one percent of the monthly mortgage, taxes and homeowner's insurance expenses for the marital residence. Defendant responded on October 30, 1996, by filing a cross-motion seeking, among other things, an order requiring the sale of the marital residence. Following a hearing on November 8, 1996, the court ordered, among other things, the immediate listing of the marital residence for sale.
Plaintiff argues that requiring the listing of the marital home for sale, pendente lite, and held by the parties as tenants by the entirety, is prohibited under the Grange decision. To the contrary, defendant argues that under the applicable statute, N.J.S.A. 2A:34-23, Grange itself, and subsequent decisions, such an order is permitted under the facts of this case.
It is beyond dispute that the principles of stare decisis bar a trial court from disobeying pronouncements of appellate courts. Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415, 169 A.2d 814 (1961), cited in State v. Williams, 194 N.J.Super. 590, 596, 477 A.2d 445 (Law Div.1984). Moreover, the mere passage of time from an earlier appellate decision, without the undermining of the rationale of that decision by either the Appellate Division or the Supreme Court, is not a basis for determining that the earlier decision is no longer controlling. Haber v. Haber, 253 N.J.Super. 413, 417, 601 A.2d 1199 (App.Div.1992). In other words, subsequent decisions of trial courts cannot by "mere force of chronological circumstances" overrule an earlier rule of law set down in an appellate opinion. State v. Turetsky, 78 N.J.Super. 203, 214, 188 A.2d 198 (App.Div.1963).
Nevertheless, the precedential effect of an opinion depends upon what issue squarely presented the court intended to resolve, or, in other words, what the court did, and did not intend to decide. Feldman v. Lederle Laboratories, 125 N.J. 117, 132, 592 A.2d 1176 (1991). Therefore, we must determine the scope of the holding in Grange.
In Grange, the parties sought equitable distribution of their several marital properties. While the matter was pending, a foreclosure action was commenced as to one of the properties, which was unoccupied. As a result, plaintiff had requested the defendant's cooperation in achieving the sale of the property as a more suitable alternative. Defendant refused and the plaintiff filed a motion to compel the defendant to approve a sale.
Although the plaintiff had earlier claimed that he could not afford to continue to maintain three residences for the parties and pay pendente lite support to the defendant, the trial court only concluded at the motion hearing that for equitable distribution purposes, this unoccupied residence, a stated "bad investment," should be sold "to minimize losses." Grange, supra, 160 N.J.Super. at 155, 388 A.2d 1335. Defendant, apparently, only questioned the sale on the issue of the sales price and whether it represented market value. 2 Id. at 156-57, 388 A.2d 1335. Eventually the sale was formally ordered and an appeal resulted.
The Appellate Division stated that "the basic issue on appeal is whether in a matrimonial matter the court may make a pendente lite order relating to the equitable distribution of the marital assets and, more specifically, order the sale of the marital dwelling absent the consent of the parties." Id. at 157, 388 A.2d 1335. While the court acknowledged the existence of the broad equitable powers provided to a trial court under N.J.S.A. 2A:34-23 to make "such orders as are necessary for the maintenance of the parties," it found that there existed "no statutory authority for pendente lite action of this kind in connection with equitable distribution." Id. at 158, 388 A.2d 1335 (second emphasis added).
As a result, the appellate court concluded that under the cited statute providing for equitable distribution where a "judgment of divorce or divorce from bed and board is entered, ... the [trial] court is without authority to order a predivorce distribution of a tenancy by the entirety." Id. (emphasis added). Finally, the court concluded that "such distribution would violate the very concept of a tenancy by the entirety and its attributes of a tenancy in common between husband and wife for the joint lives with the remainder to the survivor in fee." Id.
The nature of a tenancy by the entirety has been described in such cases as Dvorken v. Barrett, 100 N.J.Super. 306, 241 A.2d 841 (App.Div.1968):
An estate by the entirety has been described as a remnant of other times.... Its anomalous nature has been fully set forth in numerous decisions.... Suffice it to note that in an estate by the entirety, husband and wife in effect hold as tenants in common for their joint lives; that survivorship exists which is indestructible by unilateral action, and that the rights of each spouse in the estate are alienable, the purchaser becoming a tenant in common with the remaining spouse for the joint lives of the husband and wife and acquiring the fee if the grantor spouse becomes a survivor. Creditors of a debtor spouse can levy upon and sell the debtor spouse's one-half interest in the life estate for the joint lives as well as that spouse's right of survivorship.... However, during coverture, neither spouse may have partition of an estate by the entirety.
[Id. at 308-09, 241 A.2d 841 (citations omitted).]
However, the concept of tenancy by the entirety only survives in the interest of the married parties to achieve the social purposes of protecting marital assets during coverture and as security for one spouse on the death of the other. Freda v. Commercial Trust Company of New Jersey, 118 N.J. 36, 46, 570 A.2d 409 (1990); Newman v. Chase, 70 N.J. 254, 264-65, 359 A.2d 474 (1976) (). The policy, in other words, is to protect the marital residence for the benefit of a spouse and any dependent children. In re Youmans, 117 B.R. 113, 117 (1990).
Specifically, what is the practical impact of this social policy, viewed through legislative action, on the common law form of tenancy by the entirety? Certainly, in another context, all property is held in subordination of the police power. Collins v. Board of Adjustment of Margate City, 3 N.J. 200, 206, 69 A.2d 708 (1949). Can less be said as to the exercise of legislative authority to advance the above social policy, particularly when the goal is not simply for the purpose that "during coverture ... [one] spouse may have partition of an estate by the entirety"? Dvorken, 100 N.J.Super. at 309, 241 A.2d 841. Clearly, it can not, in view of the very unchallenged statutory framework established under N.J.S.A. 2A:34-23, providing for resolving issues as to custody, support and equitable distribution which promotes, if not mandates, such a conclusion. Particularly as parens patriae, the state has a long established interest in the protection of children. Lippincott v. Lippincott, 97 N.J.Eq., 517, 519-21, 128 A. 254 (E. & A.1925).
N.J.S.A. 2A:34-23 provides, in relevant part, as follows:
Pending any matrimonial action brought in this state or elsewhere, or after judgment of divorce or maintenance, whether obtained in this state or elsewhere, the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just,....
. . . . .
In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage.
It might be argued that these above provisions reflect "conflicting policy pronouncements." Graf v. Graf, 208 N.J.Super. 240, 243, 505 A.2d 207 (Ch.Div.1985). Plaintiff contends, at the very least, that these provisions are mutually exclusive and that the sale of property under equitable distribution can only occur "where a judgment of divorce or divorce from bed and board is entered," and at no earlier time in the pendency of the action. Therefore, the court must determine the appropriate construction of these provisions in resolving the issue presented herein.
In construing a statute, the court must effectuate the Legislature's intent. Monmouth County v. Wissell, 68 N.J. 35, 44, 342 A.2d 199 (1975). Sources of legislative intent are the language of the statute, the policy behind the statute, concepts of reasonableness and legislative history....
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