Grange v. GrangeGrange v. Grange
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 complеx 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 dеfendant 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 сould 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 tо 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.
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 tenаnts 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 refеrred 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 bе sold pursuant to said closing statement filed with the court on October 17, 1977 that his client was entitled to an independent appraisal of the property. The judge thereupon grаnted the motion for a sale and directed defendant to execute
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 аgreed 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 prejudicе 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 encumbrance 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 сomplex 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 subpoenаed
Defendant then sought to introduce аn 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, howеver, 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 April 5, 1978 directеd defendant comply with the February 1, 1978 order and, in the event that she failed to do so on or before April 2, 1978, that the court appointed attorney-in-fact, Robert S. Kinton, Esq., execute all documents required to accomplish the conveyance with the full force and effect as if executed by the defendant.
On April 12, 1978 we granted a stay of the order оf April 5, 1978 and pursuant to R. 2:11-2 accelerated the appeal on our own motion.
Preliminarily, we note that plaintiff‘s contention that defendant‘s motion for leave to appeal was not timely filed and therefore this appeal is nоt properly before this court, is without merit. R. 2:11-3(e) (1) (E).
Simply stated, the basic issue on appeal is whether in a matrimonial matter the court may make a pendente lite order relating to the equitablе distribution of the marital assets and, more specifically, order the sale of the marital dwelling absent the consent of the parties. Defendant contends that the trial judge errеd in ordering the marital dwelling sold, albeit it is vacant, since an order effecting equitable distribution may be awarded only after a judgment of divorce. She also asserts the judge did not havе the power to compel her, or to authorize an attorney-in-fact, to execute
We are, of course, mindful that pursuant to
It has been generally held that where a husband or wife is unwilling to execute papers for the sale of an estate by the entirety, the Chancery Division does not have the power to order him or her to do so. See Peeler v. Levy, 26 N.J. Eq. 330, 331 (Ch. 1875); In re Riva, 83 N.J. Eq. 200, 204 (Ch. 1914); Zanzonico v. Zanzonico, 24 N.J. Misc. 153, 157 (Sup. Ct. 1946); 10 N.J. Practice (Herr & Lodge, Marriage, Divorce, and Seperation), § 174 at 153 (1963).
Accordingly, it is our conclusion that the trial judge did not have the power to order defendant or the court‘s
Reversed and remanded to the Chancery Division for trial of the complaint and counterclaim for divorce and the issue of equitable distribution of the marital assets. Jurisdiction is not retained.