DIVYENDRA BAJPAI VS. MAUMITA BAJPAI (FM-14-1493-15, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3520-18T3
DIVYENDRA BAJPAI,
Plaintiff-Respondent,
v.
MAUMITA BAJPAI,
Defendant-Appellant.
Argued February 25, 2020 – Decided April 24, 2020
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-1493-15.
Daniel B. Tune argued the cause for appellant (Martin
& Tune, attorneys; Daniel B. Tune, of counsel and on
the briefs).
Leslie A. Farber argued the cause for respondent.
PER CURIAM
Defendant Maumita Bajpai appeals from the November 29, 2018 order
granting plaintiff Divyendra Bajpai's motion to enforce certain provisions of the
parties' final judgment of divorce (FJOD) and denying defendant's cross-motion
for modification of the FJOD. She also appeals from the April 2, 2019 order
denying reconsideration. Because the motion judge misapprehended the
substance of defendant's request for modification, we reverse and remand for
the entry of an order amending the FJOD.
The parties were married in 1992 and separated in January 2013.
Defendant remained in the marital home and was responsible for the mortgage
payments during the divorce proceedings. In September 2016, the court entered
an order requiring defendant "attempt to remove plaintiff's name from the
mortgage" on the marital home and "immediately become current on all
mortgage payments and pay same in a timely manner."
Unable to resolve their issues amicably, the case proceeded to trial in
October 2017. On the second day of trial, October 24, the parties reached an
agreement regarding the mortgage and a lien that was on the property. To assist
defendant in obtaining a loan modification, plaintiff executed a quitclaim deed
and other necessary documents to transfer the property to defendant. In
addition, plaintiff assumed responsibility for a $23,000 debt, counse l fees owed
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to his prior counsel, which was attached as a lien to the property. The debt was
to be repaid to the law firm within three years.
The FJOD was entered on January 25, 2018. 1 Paragraph thirteen stated:
In light of Defendant having sole and exclusive
possession of the marital residence for over 5 years, and
given that in a September 2016 [o]rder she was clearly
directed to ensure that all arrears regarding the
mortgage were to be brought current by her (an [o]rder
she remains in violation of), Defendant shall be solely
responsible for any debt currently associated with the
residence, and shall be responsible for indemnifying
and holding Plaintiff harmless with respect to any costs,
fees, or liabilities that he may incur regarding the
residence.
Under paragraph fourteen, defendant was ordered to "utilize her best
efforts to remove [p]laintiff's name from any ownership documents regarding
the marital residence, so that his name is removed within 60 days." The FJOD
did not include the settlement agreement memorialized in court on October 24,
2017 regarding plaintiff's responsibility for payment of the lien.
In August 2018, plaintiff moved for enforcement of certain portions of the
FJOD. Pertinent to this appeal, plaintiff stated defendant had not removed his
name from the mortgage. He contended this was affecting his credit score.
1
An amended FJOD filed the next day has no bearing on the issue under
consideration in this appeal.
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Plaintiff confirmed he was "still . . . obligated to pay [his] former attorneys the
sum owned to them under the terms of the agreement between the parties here."
Defendant opposed the motion and filed a cross-motion. She asserted that
plaintiff's name had been removed from ownership of the former marital home.
However, she was unable to remove plaintiff's name from the mortgage until he
satisfied the lien.
In her cross-motion, defendant requested the court amend paragraph
thirteen of the FJOD to include the settlement agreement regarding the lien.
Defendant proposed the following amendment:
Defendant shall be solely responsible for any debt
associated with the residence (EXCLUDING THE
JUDGMENT TO EINHORN HARRIS), and shall be
responsible for indemnifying and holding [p]laintiff
harmless with respect to any costs, fees, or liabilities he
may incur regarding the residence. THERE IS A
JUDGMENT AGAINST THE FORMER MARITAL
RESIDENCE RESULTING FROM PLAINTIFF'S
NON-PAYMENT OF COUNSEL FEES. THIS DEBT
SHALL BE HIS RESPONSIBILITY, AND HE SHALL
HAVE [THREE] YEARS TO REMOVE THIS DEBT,
AND IF HE FAILS TO DO SO, EVERY OTHER ONE
OF HIS PAYCHECKS WILL GO DIRECTLY TO
PAYING DOWN THAT DEBT DIRECTLY TO
EINHORN HARRIS. IN THE EVENT DEFENDANT
IS UNABLE TO MODIFY THE FIRST AND
SECOND MORTGAGES AS OTHERWISE SET
FORTH HEREIN, THE HOUSE SHALL BE
SUBJECT TO A FORECLOSURE AND PLAINTIFF
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SHALL BE RESPONSIBLE FOR ANY DEBT
REMAINING TO EINHORN HARRIS.
Defendant requested oral argument.
Without oral argument, a different Family Part judge than had presided
over the trial granted plaintiff's motion to enforce the FJOD and denied
defendant's cross-motion for modification of paragraph thirteen. In a statement
of reasons accompanying the November 29, 2018 order, the motion judge found
defendant failed to comply with prior orders and the FJOD, requiring her to
remove plaintiff's name from the mortgage. In addressing the cross-motion, the
judge referenced contract principles and general law regarding settlement
agreements. He then stated defendant had not provided any "persuasive
evidence establishing the [FJOD] is unfair or unconscionable."
Defendant moved for reconsideration of her cross-motion, again
requesting oral argument. She emphasized that, prior to the conclusion of the
divorce trial, the parties had placed a settlement on the record regarding the lien.
However, the trial judge had neglected to include the settlement agreement in
the FJOD.
The judge denied the motion on April 2, 2019 without affording oral
argument. In a written statement of reasons, the motion judge stated that the
October 24, 2017 settlement agreement was not memorialized in the FJOD, "or
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reduced to writing in any form." He noted that defendant conceded the lien did
not affect the first mortgage modification, but it remained an "obstacle" to any
modification of the second mortgage. However, because defendant had not
presented any evidence that the lien had to be removed prior to any modification
of the second mortgage, her cross-motion was denied.
On appeal, defendant asserts the trial judge's failure to mention the
settlement agreement in the FJOD was a "clear facial clerical error and not a
substantive error." Therefore, because a court has the power to correct clerical
errors under Rule 1:13-1, the second Family Part judge erred in denying the
motion to modify the FJOD. Defendant also argues it was error to deny the
multiple requests for oral argument. She contends oral argument would have
cleared up any misconceptions about the proceedings in this case and would
likely have resulted in the court granting her motions.
We agree that oral argument would have clarified this discrete issue for
the second judge. Defendant sought only to add the parties' in-court agreement
to the FJOD, in which plaintiff assumed responsibility for the lien attached to
the marital property. In his papers responding to the cross-motion, plaintiff
confirmed he was obligated to pay the lien. Therefore, the request to amend the
judgment to include the settlement language was uncontested. However, the two
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decisions denying the respective motions reflect the motion judge's
misapprehension of defendant's request. Oral argument would have clarified the
issue.
Under Rule 5:5-4(a)(1), "the court shall ordinarily grant requests for oral
argument on substantive and non-routine discovery motions . . . ." While courts
have "discretion to deny such requests," this court has stated that exercising t his
authority should be reserved for issues "regarded as unnecessary or
unproductive advocacy." Palombi v. Palombi, 414 N.J. Super. 274, 285 (App.
Div. 2010) (quoting Fusco v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div.
1982)). Defendant's effort to amend the FJOD to include the parties' settlement
agreement was not "unnecessary or unproductive advocacy." Ibid. (quoting
Fusco, 186 N.J. Super. at 328-29).
We must then determine whether the motion judge mistakenly exercised
his discretion in denying defendant's cross-motion. Although we conclude it
was error to deny defendant's application, we reach our determination on
different grounds than those asserted by defendant.
The trial judge's omission in the FJOD of the settlement agreement
pertaining to the lien was not a clerical error. Rule 1:13-1 provides that:
Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from
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oversight and omission may at any time be corrected by
the court on its own initiative or on the motion of any
party, and on such notice and terms as the court directs,
notwithstanding the pendency of an appeal.
There is no mistake in the FJOD. Indeed, the record does not reflect, and
defendant does not contend, that she requested the trial judge to include the
parties' oral settlement agreement in the FJOD.
Defendant's recourse for amendment of the FJOD was under Rule 4:49-2.
However, because a motion under that rule must be made within twenty days of
service of the judgment or order, defendant's application would have been time-
barred. Here, defendant did not make any application regarding the FJOD until
she filed a cross-motion in September 2018, nine months after service of the
FJOD.
Failing a timely Rule 4:49-2 application, defendant's remedy was under
Rule 4:50-1(f), permitting an application founded on "any other reason
justifying relief from the operation of the judgment or order." "[T]o obtain relief
from an order under [Rule] 4:50-1(f), one must show that the enforcement of the
order would be unjust, oppressive or inequitable." Quagliato v. Bodner, 115
N.J. Super. 133, 138 (App. Div. 1971) (citation omitted).
The parties agreed that plaintiff was responsible for the lien encumbering
the marital property. The court's refusal to include that agreement in the FJOD
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could result in unjust and inequitable consequences to defendant should plaintiff
not uphold the agreement. Defendant has asserted the lack of any language
regarding the lien in the FJOD has compromised her ability to modify her
mortgage loans. Amending the FJOD in accordance with the settlement
agreement is the appropriate remedy because "courts should discern and
implement the intentions of the parties." Quinn v. Quinn, 225 N.J. 34, 45 (2016)
(citation omitted).
Reversed and remanded for entry of a second amended FJOD to include
the October 24, 2017 settlement agreement. We do not retain jurisdiction.
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