KIM DELISA VS. GINO A. DELISA (FM-13-1582-08, MONMOUTH COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4194-19
KIM DELISA, n/k/a
KIM VALISH,
Plaintiff-Appellant,
v.
GINO A. DELISA,
Defendant-Respondent.
________________________
Submitted October 28, 2021 – Decided November 18, 2021
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1582-08.
Kim Valish, appellant pro se.
Law Office of McGoughran & Sanvenero, attorneys for
respondent (Timothy F. McGoughran and Sabrina L.
Blasi, on the brief).
PER CURIAM
In this post-judgment matter, plaintiff Kim Valish appeals from a June 19,
2020 order denying her motion for reconsideration of an April 28, 2020 order.
The April order rejected plaintiff's motion to enforce litigant's rights by
compelling defendant, Gino Delisa, to pay her/plaintiff $35,000 under a
provision in the parties' Property Settlement Agreement (PSA). We affirm.
We discern the following facts from the record. The parties were married
on July 15, 1995 and divorced on January 20, 2009. The parties executed a PSA
on October 24, 2008, which was incorporated into a final judgment of divorce.
Paragraph twenty-four of the PSA required plaintiff to "transfer to
[defendant] all of her right, title[,] and interest [. . .] in and to the marital home"
within thirty days of signing the agreement. "Said transfer shall [be] by
[q]uitclaim [d]eed from [defendant] to [plaintiff] accompanied by [an]
[a]ffidavit of [t]itle." Paragraph twenty-five of the PSA provided that "[a]s
additional consideration for the transfer of her interest in the marital home to
[defendant], [defendant] agrees to pay to [plaintiff] $35,000[] within five . . .
years of [plaintiff's] transfer of her interest in the marital home to him."
It is undisputed that the transfer of title never occurred. Defendant never
provided plaintiff with a quitclaim deed conveying her interest in the home, nor
did plaintiff herself present defendant with a signed quitclaim deed. Regardless
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of the reason, the condition precedent for the payment of the $35,000 was not
satisfied.
By 2012, four years after the parties signed the PSA, no quitclaim deed
had been signed. That year, both parties filed for bankruptcy. Additionally,
because defendant failed to pay the mortgage on the marital home, the property
was foreclosed upon in March 2017.
On September 3, 2015, plaintiff's then attorney sent defendant a letter
seeking the $35,000 payment.
Please be advised that I have been retained by
[plaintiff] . . . . She has asked me to take steps to set up
a QDRO [qualified domestic relations order] with
regard to the annuity as set forth in your [PSA]. . . .
In addition . . . the [PSA] provides that within
five years of [plaintiff's] transfer of the marital
premises [defendant] shall pay the sum of $35,000[] to
[plaintiff].
It is my understanding that the property has been
transferred quite some time ago.[1] Please advise as to
when and how this payment will be made. If it is not
made, further legal action may be taken to enforce the
agreement contained in the [j]udgment of [d]ivorce.
1
Indisputably, the attorney's understanding was mistaken as the transfer had
not taken place.
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Although the attorney resolved the QDRO issue, he took no further action to
enforce paragraph twenty-five of the PSA.
Over four years later, on January 29, 2020, plaintiff emailed defendant
inquiring for a "final time" about the $35,000 payment. She stated, "I would
like to resolve this issue with you amicably and I am willing to settle at $30,000.
In the unfortunate event you are unwilling to accept my offer, please understand
that I will have no other choice but to file a motion and hire an attorney."
Plaintiff further stated, "I was never provided a [q]uitclaim [d]eed from you,
removing me from the title of our home." Defendant rejected the demand and
the settlement offer.
On February 26, 2020, plaintiff filed the motion to enforce litigant's rights
and sought counsel fees and costs. 2
The matter was first argued on April 24, 2020, but the proceedings were
not recorded due to a technical malfunction. That same day, the court issued a
tentative decision and accompanying order, indicating his initial inclination was
2
On April 8, 2020, defendant filed a cross-motion seeking, among other things,
retroactive termination of child support if plaintiff's motion was granted, as well
as an award of counsel fees. As defendant has not appealed the denial of his
cross-motion, the issues raised therein are not before us and will not be
addressed.
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to grant plaintiff's motion. The tentative decision that instructed unless the
parties renewed their requests for oral argument, oral argument would be
deemed waived unless defendant renewed his request. Pursuant to defendant's
request, oral argument was rescheduled, and the matter was argued on April 27,
2020.
On April 28, 2020, the court revised its order and denied plaintiff's
motion. In the court's accompanying statement of reasons, the court found:
[T]he [d]octrine of [l]aches overrules and bars
[plaintiff's] application. [Plaintiff] admits to never
having removed herself from the deed of the former
marital home because she was never provided with a
[q]uitclaim [d]eed; however, [plaintiff] also does not
explain why she never attempted to execute a
[q]uitclaim [d]eed herself. [Plaintiff] consistently
argues that [defendant] failed to provide her with a
[q]uitclaim deed for her to sign, but nothing was barring
[plaintiff from] with producing a [q]uitclaim [d]eed
herself, for [defendant] to sign. Again, the PSA was
signed twelve . . . years ago. The [c]ourt does not
consider a reasonable time to be twelve . . . years. In
this instance, the [c]ourt finds that waiting for twelve
. . . years to seek reimbursement is an extremely
unreasonable amount of time. [Plaintiff] is barred from
bringing her equitable distribution claim
twelve . . . years later after severe inactions by both
parties.
On May 13, 2020, plaintiff filed a motion for reconsideration. She argued
the trial court erred in its determination she waited twelve years to assert her
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claim because defendant's obligation to pay did not begin until five years from
the entry of the judgment of divorce.
On June 19, 2020, after hearing arguments, the court reaffirmed its prior
ruling, noting plaintiff failed to demonstrate any error by the court. The court
reasoned that it properly relied on the filed documents, and the prior decision
was neither "palpably incorrect" nor "failed to appreciate the significance of
probative, competent evidence." The court specifically stated:
not find that [plaintiff] has proven that she raised this
issue with repeated attempts, despite having numerous
opportunities to do so . . . . The find that there has been
a change in condition during the six . . . or more years
[plaintiff] waited to file that has made it inequitable.
[Plaintiff] argues she attempted to resolve the matter
and only had the last [six] years to seek the equitable
distribution from [defendant]. The [c]ourt does not find
that [plaintiff] acted within a reasonable amount of time
to file a [n]otice of [m]otion.
This appeal ensued.
On appeal, plaintiff raises the following argument for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
PLAINTIFF HER EQUITABLE DISTRIBUTION BY
STATING [TWELVE] YEARS IS TOO LONG AND
THE DOCTRINE OF LACHES APPLIES AFTER
STATING OTHERWISE IN [ITS] TENTATIVE
[DECISION].
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Plaintiff appeals only the order denying consideration. This court defers
to a trial judge when reviewing an order denying reconsideration. "Motions for
reconsideration are governed by Rule 4:49-2, which provides that the decision
to grant or deny a motion for reconsideration rests within the sound discretion
of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440
N.J. Super. 378, 382 (App. Div. 2015). A court should not grant reconsideration
"merely because a litigant is dissatisfied with a decision of the court or wishes
to reargue a motion[.]" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.
Div. 2010). Rather, reconsideration should be granted only in two narrow
circumstances where: "1) the [c]ourt has expressed its decision based upon a
palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt ei ther
did not consider, or failed to appreciate the significance of probative, competent
evidence." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990)). Therefore, "[w]e will not disturb the trial court's reconsideration
decision 'unless it represents a clear abuse of discretion.'" Kornbleuth v.
Westover, 241 N.J. 289, 301 (2020) (quoting Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 283 (1994)).
The equitable doctrine of laches applies to divorce proceedings. Schlemm
v. Schlemm, 31 N.J. 557, 572 (1960) (citing Judkins v. Judkins, 22 N.J. Super.
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516, 537 (App. Div. 1952)). The doctrine is properly "invoked to deny a party
enforcement of a known right when the party engages in an inexcusable and
unexplained delay in exercising that right to the prejudice of the other party."
Knorr v. Smeal, 178 N.J. 169, 180-81 (2003) (citing In re Kietur, 332 N.J. Super.
18, 28 (App. Div. 2000)). "The key factors to be considered in deciding whether
to apply the doctrine are the length of delay, the reasons for delay, and the
'changing conditions of either or both parties during the delay.'" Id. at 181
(quoting Lavin v. Bd. of Educ., 90 N.J. 145, 152 (1982)). "More broadly,
'[w]hether laches should be applied depends on the facts of the particular case
and is a matter within the sound discretion of the trial court.'" Mancini v. Twp.
of Teaneck, 179 N.J. 425, 436 (2004) (alteration in original) (quoting Garrett v.
Gen. Motors Corp., 844 F.2d 559, 562 (8th Cir. 1988)).
"[L]aches involves more than mere delay, mere lapse of time. There must
be a delay for a length of time which, unexplained and unexcused, is
unreasonable under the circumstances and has been prejudicial to the other
party." W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 27 N.J. 144, 153 (1958).
The time constraints for laches "are not fixed but are characteristically flexible."
Lavin, 90 N.J. at 151.
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With these guiding principles in mind, we conclude there is no merit to
plaintiff's argument that the trial court erred in barring her claim based on the
doctrine of laches. The PSA in 2008 required defendant to pay $35,000 within
five years of the transfer of her interest in the home, not within five years of
divorce. The record amply supports the trial court's rejection of her explanation
that she never conveyed her interest because defendant never presented her with
a quitclaim deed. As the trial court noted, plaintiff never took any meaningful
steps to transfer ownership in the intervening twelve years, during which the
parties divorced, lost their business, filed for bankruptcy, and had their property
foreclosed.
Even assuming plaintiff could have belatedly transferred her interest, she
should have done so in 2015 when the home had not yet been subject to
foreclosure, and she was represented by counsel regarding the QDRO and the
$35,000 payment. For unknown reasons, she forewent this opportunity and took
no further action for four more years. Now, as the judge noted, it is too late.
After the 2017 foreclosure, plaintiff has no interest to transfer. Accordingly, her
right to the payment can never accrue.
We also reject plaintiff's challenge to the court's denial of her application
for attorney's fees. Counsel fee determinations rest within the trial judge's sound
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discretion. Williams v. Williams, 59 N.J. 229, 233 (1971). We will disturb a
trial court's determination on counsel fees "only on the rarest occasion s, and
then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J.
292, 317 (1995). Here, we discern no abuse of discretion. In denying plaintiff's
request for attorney's fees, the judge properly cited three factors: the parties'
financial circumstances, the parties' ability to pay their own fees or to contribute
to the fees of the other party, and the results obtained. See R. 5:3-5(c).
Affirmed.
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