BONNIE KMINEK VS. KENNETH A. NIERENBERG, (L-0451-18 and FM-18-0711-05, SOMERSET COUNTY AND STATEWIDE) (CONSOLDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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-0499-18
A-1292-18
A-1743-18
BONNIE KMINEK,
Plaintiff-Appellant,
v.
KENNETH A. NIERENBERG,
STEVEN NIERENBERG, THE
RICHARD NIERENBERG AND
NAOMI NIERENBERG
IRREVOCABLE TRUST,
ABC TRUST, and THE 2012
NIERENBERG FAMILY TRUST 1,
Defendants-Respondents,
and
DENISE YULIANO and PRIDE
CONSTRUCTION, LLC,
Defendants.
________________________________
1
Erroneously pled as the 2012 Trust
BONNIE KMINEK-NIERENBERG,
Plaintiff-Appellant,
v.
KENNETH NIERENBERG,
RICHARD NIERENBERG, NAOMI
NIERENBERG, PRINCETON AERO
CORPORATION, PRINCETON AIR
CORPORATION, RARITAN VALLEY
FLYING SCHOOL, DKN AND
ASSOCIATES, and PACIFIC AIR
CRAFT CORP.,
Defendants-Respondents.
________________________________
BONNIE KMINEK (f/k/a
NIERENBERG),
Plaintiff-Appellant,
v.
KENNETH NIERENBERG, ESTATE
OF RICHARD NIERENBERG, NAOMI
NIERENBERG, PRINCETON AERO
CORP., PRINCETON AIR
CORPORATION, RARITAN
VALLEY FLYING SCHOOL, and
DKN ASSOCIATES,
Defendants-Respondents.
_________________________________
Argued December 2, 2020 – Decided March 19, 2021
A-0499-18
2
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division and Chancery Division, Family Part, Somerset
County, Docket Nos. L-0451-18 and FM-18-0711-05.
Louise M. Robichaud argued the cause for appellant.
Ross A. Lewin argued the cause for respondents
(Drinker Biddle & Reath LLP, attorneys; Ross A.
Lewin, on the brief).
PER CURIAM
In 2005, plaintiff Bonnie Kminek, formerly known as Nierenberg, filed
for divorce. In the intervening years, she added defendant Kenneth Nierenberg's
parents, Richard2 and Naomi Nierenberg, a cousin, Steven, and five family-
owned companies, as defendants. In sum, she alleged that to a greater or lesser
extent, defendant and his family defrauded her of assets rightly hers, which
should have been included in equitable distribution. After a thirty -day trial, the
Family Part judge authored a comprehensive 259-page opinion in the divorce
case dated June 25, 2013. In an unpublished opinion, we affirmed the decision
with one exception—as to which we ordered a remand. Nierenberg v.
Nierenberg, No. A-5955-12 (App. Div. Sep. 8, 2016).
2
Richard is since deceased. We refer to him by his first name in order to avoid
confusion.
A-0499-18
3
The purpose of the remand hearing was to allocate the percentage of
ownership in one asset—a bank account (the A-20 account)—between Richard
and Princeton Air. Id. at 17. Additionally, the trial court was to address
plaintiff's new claim of judicial bias and request for the judge's recusal. Id. at
7-18.3
Docket No. A-1292-18 is plaintiff's appeal of the judge's decision after
the remand. Because the judge allocated a minimal percentage of the A-20
account funds to Princeton Air, he found plaintiff was owed only an additional
$9672.03. He further granted her $59,672.03 in attorney's fees.
Plaintiff's appeal under Docket No. A-1743-18 relates to the trial court's
refusal to allow plaintiff to reopen equitable distribution. She had recently
discovered a $382,000 mortgage in the name of defendant and his father as
mortgagees, taken back on behalf of a longtime Princeton Air employee as
mortgagor.
Finally, Docket No. A-0499-18 challenges the dismissal with prejudice of
her complaint against defendants filed in the Law Division, pursuant to Rule
3
Also to be resolved by the Family Part judge was plaintiff's request for counsel
fees for the appeal.
A-0499-18
4
4:6-2(e) (failure to state a claim). Plaintiff was not afforded the opportunity to
amend her complaint.
We affirm the Family Part judge's October 15, 2018 order on remand for
the reasons he expressed in his thorough and thoughtful opinion. We also affirm
a different judge's November 26, 2018 decision refusing to reopen equitable
distribution. We reverse and remand the dismissal of plaintiff's Law Division
complaint, as she should have been afforded the opportunity to amend her
pleadings.
For the reader's convenience, we address plaintiff's points of error, and
our conclusions regarding those claims, separately under each docket number.
With the exception of the remand regarding the Law Division complaint, w e
only briefly set forth the reasons we affirm, and only as to some issues. We rely
on the judges' analysis, as it is more than sufficiently supported by credible
evidence in the record and clear precedent.
Plaintiff argues the following on appeal: 4
4
Plaintiff combined her point headings for the three appeals.
A-0499-18
5
POINT I
THE APPEARANCE OF UNFAIRNESS ARISING
FROM YET A THIRD TRANSACTION INVOLVING
THE NIERENBERGS AND [THE JUDGE] AND HIS
FORMER LAW FIRM REQUIRES A REMAND AND
REDETERMINATION OF THE A-20 ACCOUNT
AND ATTORNEY FEE MOTION TO BE HEARD BY
A DIFFERENT JUDGE.
A. THE UNDISCLOSED THIRD TRANSACTION
INVOLVING THE NIERENBERGS AND [THE
JUDGE] AND HIS FORMER LAW FIRM.
B. THE APPEARANCE OF UNFAIRNESS.
POINT II
THE COURT ERRED IN DENYING BONNIE'S
MOTION TO COMPEL DISCOVERY, TO
OVERRULE OBJECTIONS INTERPOSED BY
KENNETH AT HIS DEPOSITION, TO APPOINT A
DISCOVERY MASTER, AND TO ENGAGE A REAL
ESTATE APPRAISER.
A. SPOLIATION OF BANK RECORDS.
B. KENNETH'S DEPOSITION OBJECTIONS.
C. APPOINTMENT OF A DISCOVERY MASTER.
D. APPRAISAL OF THE PHILADELPHIA
PROPERTIES.
POINT III
THE TRIAL COURT ERRED WHEN IT BARRED
BONNIE'S EXPERT FROM TESTIFYING AT THE
PLENARY HEARING, DEPRIVING BONNIE OF A
CRITICAL WITNESS ON REBUTTAL.
A-0499-18
6
POINT IV
THE COURT ERRED IN ITS DETERMINATION OF
THE ISSUES SURROUNDING THE A-20
ACCOUNT.
A. THE COURT ERRED IN ITS ASSESSMENT
AND DISTRIBUTION OF INTEREST
INCOME IN THE A-20 ACCOUNT.
B. THE COURT FAILED TO ASSESS THE
RELIABILITY OF KENNETH'S AND
RICHARD'S TESTIMONY REGARDING THE
SOURCE OF FUNDS IN THE A-20 ACCOUNT.
1. The Burden of Production.
2. The Need for an Assessment of Reliability.
3. The Speculative Nature of the Amount of
Funds.
4. The [E]ffect of the Appellate Division's
Decision.
5. Adverse Inference Arising from Missing
Records.
6. Respondents['] Disposition to Deprive
Bonnie of Her Right to Equitable
Distribution.
C. THE COURT SHOULD HAVE ATTRIBUTED
AN ADDITIONAL $200,000 IN INCOME TO
PRINCETON AIR.
D. THE COURT ERRED IN FAILING TO
CONSIDER THE PRESENT VALUE OF
A-0499-18
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MARITAL FUNDS EMPLOYED IN THE DKN
EXCHANGE.
E. THE COURT ERRED IN FAILING TO
CONSIDER INTEREST DUE UNDER RULE
4:42-11(a).
POINT V
THE COURT ERRED IN ITS DETERMINATION OF
THE ISSUES SURROUNDING BONNIE'S MOTION
FOR COSTS, EXPENSES AND ATTORNEYS FEES
ON APPEAL AND ON REMAND.
A. THE COURT'S UNFAIR FAILURE TO
ATTRIBUTE ANY BLAME TO THE
NIERENBERGS FOR CAUSING THE
MATTER TO SPIRAL OUT OF CONTROL.
B. THE COURT'S UNFAIR COMMENT ON
PRIVILEGED COMMUNICATIONS IN
MEDIATION, WHICH THE COURT
MISCHARACTERIZED.
C. THE UNFAIR CRITICISM OF APPELLANT'S
DISCOVERY.
D. THE UNFAIR AND ERRONEOUS
CHARACTERIZATION OF RICHARD
NIERENBERG'S TESTIMONY.
E. THE UNFAIR AND ERRONEOUS
CHARACTERIZATION OF THE $416,500.
F. THE COURT UNFAIRLY FAILED TO
REQUIRE KENNETH TO DISCLOSE THE
EXTENT OF ATTORNEY FEES INCURRED
ON APPEAL AND ON REMAND.
A-0499-18
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POINT VI
THE COURT ERRED IN FAILING TO CONDUCT A
PLENARY HEARING ON BONNIE'S MOTION TO
REOPEN BASED ON NEWLY DISCOVERED
EVIDENCE OF THE VAMOS LOAN.
A. BONNIE'S MOTION WAS NOT TIME
BARRED BY THE DOCTRINE OF RES
JUDICATA.
B. BONNIE ESTABLISHED A PRIMA FACIE
CASE THAT MARITAL FUNDS MAY HAVE
BEEN USED TO FINANCE THE VAMOS
LOAN.
POINT VII
THE TRIAL COURT ERRED WHEN IT DISMISSED
BONNIE'S COMPLAINT WITH PREJUDICE
BECAUSE THE COMPLAINT, WHEN
EVALUATED IN ACCORDANCE WITH THE
APPLICABLE STANDARD, ESTABLISHED A
FUNDAMENT OF A CAUSE OF ACTION.
A. THE COURT FAILED TO ACCEPT AS TRUE
THE ALLEGATIONS IN THE COMPLAINT IN
SUPPORT OF BONNIE'S CAUSE OF ACTION
FOR UNJUST ENRICHMENT.
B. THE COURT MISCHARACTERIZED THE
"TWO CONSPIRACIES."
C. THE COURT MISAPPLIED THE LAW ON
CONSPIRACY.
D. THE COURT FAILED TO ADDRESS
VARIOUS OTHER CAUSES OF ACTION.
A-0499-18
9
DOCKET NO. A-1292-18
We reiterate that on remand we directed the trial judge to limit the factual
inquiry to the extent to which, if at all, Princeton Air funds were commingled
with Richard's funds in the A-20 account. The focus was to ascertain the
appropriate percentage of ownership, following limited discovery and the
presentation of proofs regarding account funds. The remand was not intended
to reopen any other aspect of the earlier litigation.
We did allow plaintiff the opportunity to address the recusal issue:
On remand, the trial court will have the opportunity to
address the allegations, raised for the first time on
appeal by [plaintiff], that there was a $100,000 transfer
in July 2004 from the A-20 account to an attorney trust
account at the law firm in which the trial judge was
previously employed. Kenneth contends this transfer
was related to the sale of an airplane. [Plaintiff]
appears to have been aware of the $100,000 transfer
during the trial, but did not raise the issue then. She
now contends that this transaction provides a basis to
disqualify the trial judge. Because this issue was raised
for the first time on appeal, the judge was not accorded
the opportunity to address this allegation.
[Nierenberg, slip op. at 17-18.]
Also remanded was plaintiff's request for $331,309.81 in legal fees for the cost
of the appeal.
A-0499-18
10
Defendant was extensively deposed and testified about the A-20 account,
which was managed by his father. Funds were deposited and withdrawn related
to airplane equipment and airplane sales, and commissions generated by those
transactions, hence the potential that unaccounted-for Princeton Air money was
involved.
In making additional findings, the court adjusted Princeton Air's valuation
by incorporating $10,599 in interest earned in the A-20 account attributable to
Princeton Air's activities, increasing earnings by $1766.50 for 2005. When the
$1766.50 figure was capitalized, pursuant to the formula used in the prior
proceeding, additional corporate earnings increased Princeton Air's value by
$8745.05. Thus, the total value of Princeton Air in 2005 increased by $10,599
in interest plus $8745.05, a total of $19,344.05. Plaintiff's half of that sum came
to $9672.03. The ruling was based on ample credible evidence in the record and
a prior formula, the use of which we previously affirmed. See id. at 28.
Now on appeal, plaintiff raises a number of meritless arguments attacking
the judge's decision and his analysis that do not require discussion in a written
opinion. R. 2:11-3(e)(1)(E). They include the argument that the judge
improperly limited discovery and improperly refused to appoint a discovery
master.
A-0499-18
11
Discovery decisions are discretionary. Capital Health Sys., Inc. v.
Horizon Healthcare Servs., Inc., 230 N.J. 73, 79 (2017); Pomerantz Paper Corp.
v. New Cmty. Corp., 207 N.J. 344, 371 (2011). Clearly, the judge did not abuse
his discretion by limiting discovery to the remand decision.
Plaintiff also made a baseless claim of spoliation of bank records. As the
judge opined, there was no proof whatsoever that documentary or other evidence
was destroyed. Defendants produced extensive records during the divorce
litigation, and plaintiff was provided a blanket authorization to obtain all
relevant records from Merrill Lynch, the firm at which the A-20 account was
maintained. That the many-years-old account information could not be
reconstructed is unsurprising. Plaintiff failed to demonstrate spoliation and is
not entitled to an adverse inference as a result.
Equally without merit is plaintiff's claim that she should have been
permitted to obtain the current value of certain Philadelphia properties she
alleged were purchased with defendant's disproportionate share of A-20 funds.
In our original decision, we rejected this novel claim, and plaintiff has not
established any reason that ruling should change. See Nierenberg, slip op. at
25.
A-0499-18
12
Plaintiff sought to have her equitable distribution expert testify at the
remand hearing—even though none of the expert's five earlier reports addressed
the A-20 account. Plaintiff, pursuant to Rule 4:17-4(e), was required to produce
an expert's report about the subject in advance of the hearing, and did not do so.
Thus, the judge's decision barring the expert's testimony was not an abuse of
discretion.
Plaintiff further contends that the trial court erred by not taking into
account the present value of marital funds used in the transaction referred to as
the DKN 1031 exchange. We previously rejected this novel theory. Nierenberg,
slip op. at 25.
Plaintiff also seeks post-judgment interest. See R. 4:42-11(a). Defendant
was required to pay the sum the judge ultimately awarded within a specified
period of time. He did so. Therefore, no interest is due.
Plaintiff sought $331,309.81 in legal fees for the cost of her appeal, and
$109,639.59 for the cost of representation during the remand hearing. The judge
awarded the sum of $9672.03 in fees for the remand, limiting the amount to the
extent of plaintiff's recovery. As he pointed out:
[A]fter five full years of post-judgment litigation and
the incurrence of another $440,000 in professional fees,
[p]laintiff's so-called "victory" was an award of less
than 3% of the monies spent on the appeal and remand
A-0499-18
13
proceeding. Interestingly, the increase in equitable
distribution did not result from any argument raised by
[p]laintiff['s] counsel, but from an inquiry raised by the
Appellate Division sua sponte. And the information
that supported this minor adjustment was in [p]laintiff's
possession all the time: it had just never been employed
by [p]laintiff and her professionals when valuing
Princeton Air.
....
There is simply no basis or authority to expose
[defendant] as a matrimonial party to the costs
associated with [p]laintiff's unsuccessful prosecution of
fraud claims against his parents and their companies.
However, [p]laintiff and her professionals have made
no attempt to allocate even a dollar of legal expenses to
those activities.
The judge limited the legal fees on the appeal to the $50,000 cap to which
counsel agreed. We see no error in the judge's consideration of the application
and the relevant rules and caselaw. R. 2:11-3(e)(1)(A).
Finally, plaintiff argues the judge's prior involvement—tangential or
otherwise—in three transactions related to defendant created the appearance of
unfairness, warranting his recusal. As we said in our prior decision, the trial
judge acted as counsel for a bank years before these proceedings began.
Nierenberg, slip op. at 8-19. In that capacity, he prepared a mortgage note
"evidencing funds loaned to acquire Princeton Airport." Ibid. The judge
A-0499-18
14
disclosed the prior representation to the parties, and at that juncture no one
objected because it was entirely neutral information.
The second transaction cited by plaintiff stemmed from "a $100,000 wire
transfer in July 2004 from the A-20 account to an attorney trust account at the
law firm in which the trial judge was previously employed." Id. at 19. Plaintiff
raised this issue for the first time on appeal, which we remanded as the judge
had not been given a prior opportunity to address it. Ibid. On remand, the judge
explained that neither he, nor the former law firm where he worked, ever
represented the defendants. The judge further noted that "neither [he] nor [his]
former [l]aw [f]irm ever had any business relationship with [d]efendants." In
light of the judge's "[de minimis], irrelevant and tangential involvement" with
this transaction, the judge reasonably found it would not impede his ability to
"conduct the remand hearing in a fair and impartial manner."
Plaintiff's attorney thereafter discovered another transaction in which the
judge's law firm represented a longtime employee of Princeton Air, Jeffrey
Vamos, when he purchased a home. In that instance, the buyer was represented
by a member of the judge's firm. For some unknown reason, the deed to the
property indicates it was to be returned to the judge and not the attorney in the
firm who represented the employee. This transaction occurred in 2006.
A-0499-18
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The transaction did not create a conflict for the judge who presided over
the divorce. A years-earlier transaction, in which the judge's former law firm
represented a party whose interest was contrary to defendant's, simply is not a
basis for recusal.
DOCKET NO. A-1743-18
Plaintiff argues the trial court erred in failing to reopen equitable
distribution because of new information that marital funds may have been used
to finance the loan to Vamos. Plaintiff discovered the transaction prior to the
remand hearing but after the appeal decision. The remand hearing occurred on
July 27, 2018. It lasted one day.
A mortgage and mortgage note in the amount of $382,000 named Richard
as mortgagor, and Richard added Kenneth's name to the mortgage. Kenneth
certified that he was unaware of the transaction. He reviewed his late father's
files and discovered five documents related to that transaction which he
provided to the court. They included a domestic wire transfer from Richard to
the attorney in the judge's former firm, in the amount of $382,000 dated June
12, 2006.
Defendant submitted Vamos' certification in support of his position he
knew nothing about the transaction and did not benefit from it. Vamos certified
A-0499-18
16
that he had approached Richard as an investor in the real property, who would
be entitled to six percent interest on the loan, and fifty percent of the
appreciation when the home ultimately sold. Vamos, not Richard, retained the
judge's former law firm, and an attorney at the firm prepared the mortgage.
Vamos could not explain the reason defendant was on the documents, as
it was Richard with whom he negotiated, and Richard who provided the funds
for the purchase. Vamos never actually made any payments to anyone on
account of the mortgage. When plaintiff attempted to subpoena Richard's bank
records to explore the transaction, they were not available because they were
more than seven years old.
The judge who heard plaintiff's application with regard to the Vamos
transaction—different from the trial judge who conducted the remand—denied
plaintiff's application to reopen equitable distribution. He opined that such
claims were barred by the doctrine of res judicata and because more than five
years had passed since the divorce judgment entered. The motion was untimely,
and plaintiff had not established any extraordinary circumstances which would
justify reopening it pursuant to Rule 4:50-1(f). In the absence of any credible
evidence that defendant even knew about, much less benefitted from, the Vamos
A-0499-18
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transaction, the judge found no basis to reopen equitable distribution and denied
plaintiff's application.
In light of the total absence of proof that defendant had knowledge,
involvement in, or benefitted from the Vamos mortgage, there is no need for us
to reach the question of whether as a matter of law plaintiff was entitled to revisit
equitable distribution. See R. 2:11-3(e)(1)(E).
DOCKET NO. A-0499-18
Finally, we reach the issue of the dismissal of plaintiff's Law Division
complaint with prejudice because of her failure to state a claim. See R. 4:6-2(e).
In dismissing the claims against Steven Nierenberg and the Nierenberg Family
Trusts, the court explained:
According to the Complaint, Kenneth Nierenberg
"enlist[ed]" Steven and the Nierenberg Family Trusts in
a conspiracy in order to purchase the marital home at
the sheriff's sale and in order to resell the property for
a substantial profit. However, black letter law
establishes that there is nothing illegal, improper or
inequitable that prevents parties like Steven and the
Nierenberg Family Trusts from participating, directly
or indirectly, in a sheriff's sale.
Further, [p]laintiff's legal assertion that it was
improper for Steven and the Nierenberg Family Trust
to conspire with Ken and others to bid at the sheriff's
sale ignores the fact that Ken could have properly bid
at the sheriff's sale.
A-0499-18
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[(citation omitted).]
In dismissing the claims against defendant, the court further explained:
Plaintiff's [c]omplaint asserts that Kenneth participated
in two conspiracies, one, to withhold equitable
distribution payments so as to force the marital home
into foreclosure and, two, by enlisting the other
defendants in submission of a successful bid at the
sheriff[']s sale. For the same reasons set forth above,
there is no legal or equitable impediment preventing
Kenneth from participating, directly or indirectly in a
bid at the sheriff's sale. Accordingly, that claim must
be dismissed with prejudice.
The same is true of the first conspiracy claim
asserted by [p]laintiff. According to [p]laintiff,
Kenneth withheld required payments of equitable
distribution in order to insure [sic] that [p]laintiff did
not have the resources to make payments on the line of
credit. However, in a court-filed certification that this
Court may consider on a motion to dismiss, [p]laintiff
herself has sworn to the following:
With respect to the carrying costs of the
house, Ken knows that I am unable to make
these payments in my current financial
condition. Ken proposed the taxes and
home equity payments be deducted from
the equitable distribution he still owes me
. . . . I cannot agree to this . . . .
The only "facts" outside of the [c]omplaint which
[d]efendant argues involve the offer by [d]efendant,
Kenneth, to pay the taxes and line of credit to hold off
the foreclosure. These facts were conceded by the
[p]laintiff, so they can be considered. Plaintiff's own
sworn statement makes clear that Kenneth never held
A-0499-18
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back his equitable payments in an effort to force the
property into foreclosure.
Plaintiff's [c]omplaint, read in connection with
her own sworn statements in the [c]ourt record, fails to
plead any viable claim that Kenneth withheld the
equitable distribution payments in order to force the
marital home into foreclosure. As the Appellate
Division has recognized, when the allegations in a
complaint are contradicted by documents that a court
may properly consider, the document controls. Myska
v. [N.J. Mfrs.], Ins. Co., 440 N.J. Sup[er. 458] (App.
Div. 2015). Thus, no valid claim for a "forced
foreclosure."
A pleading must "contain a statement of facts on which [a] claim is based,
showing that the pleader is entitled to relief, and a demand for judgment for
[that] relief." R. 4:5-2. "Pleadings must fairly apprise the adverse party of the
claims and issues to be raised at trial." Spring Motors Distribs., Inc. v. Ford
Motor Co., 191 N.J. Super. 22, 29 (App. Div. 1983), aff'd in part & rev'd in part
on other grounds, 98 N.J. 555 (1985). See also Pressler & Verniero, Current
N.J. Court Rules, cmt. 1 on R. 4:5-2 (2020).
We review dismissals for failure to state a claim de novo, applying the
same standard as the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483
(App. Div. 2005). Generally, motions for failure to state a claim should be
granted only in "the rarest of instances." Printing Mart-Morristown v. Sharp
Elecs. Corp., 116 N.J. 739, 771-72 (1989). On such a motion, "the inquiry is
A-0499-18
20
confined to a consideration of the legal sufficiency of the alleged facts apparent
on the face of the challenged claim." Rieder v. State Dep't of Transp., 221 N.J.
Super. 547, 551 (App. Div. 1987) (quoting P. & J. Auto Body v. Miller, 72 N.J.
Super. 207, 211 (App. Div. 1962)). "The court may not consider anything other
than whether the complaint states a cognizable cause of action." Ibid.Furthermore, on a challenge to the adequacy of the complaint, "all facts,
reasonable inferences and implications are to be considered most strongly in
favor of the pleader." Spring Motors, 191 N.J. Super. at 29-30. See also Smith
v. SBC Commc'ns, Inc., 178 N.J. 265, 268-69, 282 (2004). The court must
search the pleading in depth and with liberality to determine whether a cause of
action exists "even from an obscure statement of claim, opportunity being given
to amend if necessary." Printing Mart-Morristown, 116 N.J. at 746. It should
not be concerned with "the plaintiff's ability to prove the facts alleged." Sickles
v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005). "[T]he test for
determining the adequacy of a pleading [is] whether a cause of action is
'suggested' by the facts." Printing Mart-Morristown, 116 N.J. at 746 (quoting
Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).
Plaintiff alleges that defendant acted in concert with Steven and the
Nierenberg Family Trust to thwart her continued ownership of the marital home.
A-0499-18
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Plaintiff also alleges that she elected to purchase defendant's interest in the
former marital home based in part on his obligation to make equitable
distribution payments totaling $199,115.46. By conspiring to improperly
withhold equitable distribution and alimony payments from plaintiff, she asserts,
defendants prevented her from paying the carrying costs on the former marital
home, causing it to go into foreclosure, so that defendants could purchase it at a
foreclosure sale.
The Supreme Court has previously defined a civil conspiracy as:
a combination of two or more persons acting in concert
to commit an unlawful act, or to commit a lawful act by
unlawful means, the principal element of which is an
agreement between the parties to inflict a wrong against
or injury upon another, and an overt act that results in
damage.
[Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177
(2005) (quoting Morgan v. Union Cty. Bd. of Chosen
Freeholders, 268 N.J. Super. 337, 364 (App. Div.
1993)).]
The trial court improperly focused on whether plaintiff could actually
prove such a conspiracy, Sickles, 379 N.J. Super. at 106, rather than whether a
cause of action was "suggested" by the facts alleged, Printing Mart-Morristown,
116 N.J. at 746.
A-0499-18
22
Indeed, the court pointed to the fact that defendant offered to make the
payments on the home equity line and the property taxes so long as those
payments were deducted from his equitable distribution obligation, thus
establishing that defendant "never held back his equitable payments in an effort
to force the property into foreclosure." However, such a conclusion is not
supported by the offer, since the offer does not explain why defendant simply
did not pay his equitable distribution obligations as required by the dual
judgment of divorce and the supplemental judgment of divorce, nor does the
offer establish that defendant would have actually paid the carrying costs on the
marital property as promised. Nevertheless, those considerations relate to
whether plaintiff could prove her case, not whether she "suggested" a cause of
action. See ibid.Furthermore, the trial court misinterpreted plaintiff's civil conspiracy
claims as involving two separate conspiracies: "Plaintiff's [c]omplaint asserts
that [defendant] participated in two conspiracies, one, to withhold equitable
distribution payments so as to force the marital home into foreclosure and, two,
by enlisting the other defendants in [the] submission of a successful bid at the
sheriff[']s sale." However, the complaint alleges that defendant conspired with
Steven and the Nierenberg Family Trust to thwart her acquisition of the marital
A-0499-18
23
home, force the former marital home into foreclosure, and purchase it at a
discounted price at the sheriff's sale.
Under the trial court's reading of the complaint, defendant conspired with
himself "to withhold equitable distribution payments so as to force the marital
home into foreclosure." Not only is the court's reading of the complaint
untenable, it did not consider "all facts, reasonable inferences and implications"
in plaintiff's favor. Spring Motors, 191 N.J. Super. at 29-30.
Finally, the court did not address the other causes of action set forth in the
complaint and the reasons they did not allege cognizable causes of action. See
R. 1:7-4(a) ("The court shall, by an opinion or memorandum decision, either
written or oral, find the facts and state its conclusions of law thereon in all
actions tried without a jury, on every motion decided by a written order that is
appealable as of right . . . ."); Curtis v. Finneran, 83 N.J. 563, 570 (1980)
(holding that the trial court must state clearly its factual findings and correlate
them with the relevant legal conclusions). Thus, we remand the matter to allow
plaintiff the opportunity to amend her pleadings.
A-0499-18
24
We affirm the judgments entered under docket numbers A-1292-18 and
A-1743-18, and reverse docket number A-0499-18. We remand the latter, but
do not retain jurisdiction.
A-0499-18
25