Friday, December 5, 2014
Motion For Reconsideration of Equitable Distribution Of Home Denied
In the recent Appellate Division case out of Morris County, Abdalla v. Assadourian, the Plaintiff, Fatima Abdalla, appealed from a 2013 Court Order that denied reconsideration of the part of the Order dealing with the equitable distribution of the parties' former marital residence. The previous Court Order directed that the proceeds received upon the sale of the home were to be divided equally amongst the parties, after the Defendant, Hovsep Assadourian, remitted $15,600 to Plaintiff in alimony arrears from his share of the proceeds. The Appellate Court affirmed the lower court's denial of the Plaintiff's request. The parties in this case were married in 1973 and subsequently obtained a divorce in 2003. The parties did not memorialize a property settlement agreement (PSA) and the Plaintiff's attorney retired and destroyed her file. The parties did not agree on the substance of their settlement so a hearing was held to discern the specifics. The Plaintiff testified that she did not understand her divorce proceedings because she is Arabic and did not have an interpreter at the time of her divorce. She claimed that she was unaware who was supposed to pay the mortgage, taxes, and insurance on the marital home but that she never made such payments since her divorce yet she continued to live in the home with the parties' two sons. The Defendant testified that he was under the impression that the house was to be sold immediately after the divorce and the proceeds divided equally. Both parties were in their 60's at the hearing and both were unemployed. At the conclusion of the hearing the judge ruled that the marital home was to be sold immediately. The Plaintiff refused to participate in the sale and in 2012 the judge appointed a listing agent and ordered that the parties sign the listing agreement within 10 days. Soon thereafter the judge appointed an attorney to act as a signatory to executed the listing agreement on behalf of the Plaintiff and assessed $3,000 in counsel fees against her. The Plaintiff's attorney filed a Motion for reconsideration in 2013. The Motion was filed more than five (5) months after the judge first ordered the home sold, which was wall beyond the non-enlargeable twenty (20) day time period as prescribed in the court roles. N.J.C.R. 4:49-2; N.J.C.R. 1:3-4(c). The trial judge denied the Motion for reconsideration because it was untimely. A Motion for reconsideration is addressed to the "sound discretion of the [c]ourt, to be exercised in the interests of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Reconsideration should be utilized only for those cases which fall into that narrow category in which either 1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence. Id. The Appellate Court held that the Plaintiff sought reconsideration because she alleged she would be able to find new evidence to convince the judge to change the decision. The judge viewed her Motion as a stall tactic because the Plaintiff made clear by her behavior that her intention was to not cooperate in the sale of the home. The trial judge exercised sound discretion in denying the Plaintiff's Motion for reconsideration. The equitable distribution of assets is of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, post-judgment modification, contested divorce, spousal support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.