Plenary Hearing is Necessary
The husband and wife in Glovich v. Slaight were married in April 2002, had one daughter together in July 2005, and divorced in April 2013. During the divorce proceedings, they entered into a marital settlement agreement (MSA) that addressed, among other things, equitable distribution. The MSA provided that the marital home would be transferred to the husband as long as he could refinance the 2 mortgages on the property, and he would then retain exclusive possession thereof. Because the wife was in sole possession of the home during part of the litigation, the MSA also stipulated that she would vacate by August 31, 2013, and that any property damage that occurred during her occupancy would be addressed by post-judgment motion practice if the husband and wife could not agree on reimbursement. To this end, the husband took a video of the entire home shortly before executing the MSA, and the agreement provided for a company to inspect the home and provide repair estimates within 10 days of the date of the MSA. Finally, the MSA stipulated that each spouse would retain his or her personal property, but designated certain items to remain in the home, which would become the husband’s when he took possession of the property.
In August 2013, after the final judgement of divorce had been entered, the wife sought permission to stay in the home until certain loan proceeds were distributed. She ultimately remained in exclusive possession of the property until a year later. She moved out on August 15, 2014, and the husband took possession that day. The professional inspection did not occur until October 2014, but the husband certified that he conducted his own inspection on the day he moved in, and that he took photos and a video of property damage.
On August 4, 2014, just before vacating the home, the wife filed a motion seeking to resolve child-related issues and child support. The husband filed a cross-motion seeking, among other things, an order directing the wife to return certain items of personal property and to pay for the damage she allegedly caused to the home. He also requested a plenary hearing. On December 22, 2014, the Family Part judge denied those portions of the husband’s cross-motion without prejudice, explaining that he did not provide proofs of the damage to the home, and that he did not demonstrate the monetary damage he suffered relating to the personal property.
In May 2015, the husband filed a similar motion seeking reimbursement for damage and for the personal property that was never returned. His motion papers did not request a plenary hearing, but in his reply papers and at oral argument he did make such request. The husband certified that the wife had multiple pets while in sole possession of the residence and that they had caused extensive damage. He also asserted that the wife had either taken, destroyed, or discarded personal property that was supposed to stay in the home pursuant to the MSA. The husband additionally submitted: (1) copies of the photos he took during his August 15, 2014 walkthrough of the premises; (2) an invoice showing he paid more than $6,000 for repairs to the home; and (3) a list of items of personal property that were missing. The wife opposed the motion, denying she had damaged the property. She claimed that any actual damage resulted from normal wear-and-tear. She further stated that some damage was caused by hurricanes, and that the husband had already been reimbursed appropriately.
On June 29, 2015, after oral argument—but not a plenary hearing—the Family Part judge denied the husband’s motion. The court reasoned that it could not determine whether any damage was caused solely by the wife, partially by the wife, or occurred after she vacated. The court observed that the official inspection was to occur within 10 days of executing the MSA in April 2013, but did not actually occur until October 2014. Regarding the personal property, the judge explained that the proofs provided by the husband were inadequate, and that he did not show that he had made any efforts to retrieve such property within a reasonable period of time. The husband appealed.
The Appellate Division agreed with the husband’s argument that the judge below should have conducted a plenary hearing. The Appellate Division explained that a plenary hearing is necessary when there is a genuine issue of material fact that requires evidence beyond what is in the motion papers. The trial court may not make credibility determinations or resolve genuine factual issues when confronted with conflicting affidavits—which is exactly what was before the Family Part judge in this case. The husband certified that the wife and her pets had damaged the home while she had exclusive possession thereof, and that she had failed to return items of property that were his or were designated to remain on the premises. But the wife’s opposition stated that she did not cause any damage, and that the husband had been reimbursed for preexisting storm damage. Because these assertions went to the heart of the issues presented, they required additional fact-finding by way of plenary hearing.
The Appellate Division also disagreed with the judge’s conclusion that the untimely inspection made determining the wife’s responsibility for damage impossible. The Appellate Division observed that the husband submitted photos in support of his motion, and explained that a plenary hearing would permit the judge to assess each spouse’s credibility and “potentially gain clarity regarding the condition of the home at the various relevant times.”
Because of the factual dispute, the Appellate Division reversed and remanded the case to the Family Part for a plenary hearing. In addition to the abovementioned issues, the Appellate Division noted that the Family Part judge should distinguish between damage caused by the wife directly and damage caused by her pets because the MSA itself seems to draw such a distinction. Finally, the judge on remand must also explore the allegedly missing property—specifically, what property was unaccounted for, what efforts the husband made to retrieve that property, and when he became aware that property designated to remain in the home was missing.
If you have an issue with equitable distribution, contact the skilled matrimonial attorneys at Snyder Sarno D’Aniello Maceri & da Costa LLC. Call us today at (973) 274-5200.