DAMARIS SANTIAGO VS. JUAN A. ISALES (FM-12-0544-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1242-16T1

DAMARIS SANTIAGO,

Plaintiff-Appellant,

v.

JUAN A. ISALES,

Defendant-Respondent.
____________________________

Submitted March 19, 2018 – Decided July 26, 2018

Before Judges Accurso and Vernoia.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-0544-15.

Damaris Santiago, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Damaris

Santiago challenges an October 14, 2016 order denying her request

to vacate that portion of a August 19, 2016 order designating

defendant Juan A. Isales as her attorney in fact for the purpose

of signing a listing agreement and other documents necessary for
the sale of property located at XXX Oak Street in Perth Amboy. We

affirm.

Following almost forty-five years of marriage, the parties

divorced in July 2015. Their Dual Final Judgment of Divorce

incorporated by reference a Matrimonial Settlement Agreement (MSA)

which granted defendant exclusive possession of the Oak Street

property,1 and required that the property be listed with a realtor

and sold. The MSA further required that the parties receive equal

shares of the net equity in the property, subject to the allocation

of specified credits.

Within weeks of their divorce, plaintiff moved to compel

defendant to sell his interest in the property to her. Defendant

cross-moved for an order finding plaintiff in violation of

litigant's rights by failing to sign a listing agreement and

appointing defendant as plaintiff's attorney in fact for the

purpose of signing the listing agreement. On September 4, 2015,

the court entered an order denying plaintiff's motion to modify

the MSA's provisions concerning the sale of the Oak Street property

1
The parties also owned property at YYY Oak Street and agreed to
sell that home as well. This appeal pertains only to the XXX Oak
Street property.

2 A-1242-16T1
and her request to compel defendant to sell his interest in the

property to her. The court also denied defendant's cross-motion.2

Ten months later, plaintiff filed a second post-judgment

motion and supplemental motion requesting, among other things,

that the court compel defendant to sell plaintiff his interest in

the Oak Street property. Defendant again cross-moved for an order

finding plaintiff in violation of litigant's rights for refusing

to sign a listing agreement, and designating defendant as

plaintiff's attorney in fact for purposes of executing the listing

agreement and all other documents required to sell the property.

In an August 19, 2016 order, the court denied plaintiff's

motion to modify the MSA "as it relates to" the Oak Street

property, and compel defendant to sell his interest in the property

to her. The court granted defendant's cross-motion, found

plaintiff in violation of litigant's rights by refusing to sign a

listing agreement and appointed defendant as plaintiff's attorney

in fact for purposes of signing the listing agreement and the

other documents required to sell the property.3

2
The court's order states that the denials of the parties' motions
were for reasons set forth on the record on September 4, 2015.
Plaintiff has not supplied the transcript of the court's September
4, 2015 statement of reasons.
3
The court's order stated that the reasons for the court's
decisions were set forth on the record on August 19, 2016.

3 A-1242-16T1
 Defendant subsequently listed the property for sale with a

realtor and entered into a contract of sale, executing the

necessary documents as plaintiff's attorney in fact pursuant to

the court's August 19, 2016 order. In September 2016, plaintiff

moved in part to revoke defendant's authority to execute documents

as her attorney in fact and, again, to require that defendant sell

his interest in the property to her. Defendant cross-moved for

dismissal of plaintiff's motion and an award of attorney's fees.

In an October 14, 2016 order, the court denied both motions.

The sale of the property was scheduled for November 23, 2016.

On November 21, 2016, plaintiff filed a motion returnable on

December 16, 2016, requesting that she be permitted to purchase

defendant's interest in the property. More particularly,

plaintiff sought an order permitting her to purchase defendant's

interest in the property for $112,000 based on an estimate of the

property's value she obtained from the internet, and with the

contingencies that defendant agree to remove her name from a credit

card account they shared and waive his right under the MSA to a

$25,000 credit against the equity in the home.

Plaintiff has not provided the transcript of the court's statement
of reasons.

4 A-1242-16T1
 The filing of plaintiff's motion delayed the closing.

Defendant filed an order to show cause seeking an order again

authorizing his execution, as plaintiff's attorney in fact, of the

documents necessary to complete the sale. During the December 5,

2016 oral argument on defendant's application, his counsel advised

the court that the purchaser of the property had served a notice

stating the closing must occur on December 6, 2016, and asserting

time was of the essence. Counsel represented that defendant would

"be sued" if he did not timely complete the sale. Counsel further

argued plaintiff's ongoing opposition to the sale constituted an

effort to modify the express terms of the MSA to which she had

voluntarily agreed. Plaintiff, appearing pro se, contended

defendant was not paying the taxes on the property as required,

and that she should be permitted to purchase his interest so she

no longer had to rent a place to live.

In an opinion from the bench, the court found the property

was "under contract to be sold with the time of the essence closing

. . . scheduled for [the following day], December [6], 2016," and

if the closing did not occur, plaintiff and defendant were subject

to a lawsuit. The judge observed the sale of the property was

consistent with the terms of the MSA, which was negotiated by the

parties while represented by counsel and entered into voluntarily.

The judge further found plaintiff's series of motions sought a

5 A-1242-16T1
modification of the MSA, but the "bottom line is there is no basis

for changing the" MSA.

The judge entered a December 5, 2016 order granting defendant

the power to act as plaintiff's attorney in fact to complete the

sale of the property. In his oral opinion, the court also denied

plaintiff's November 21, 2016 motion for an order permitting her

to purchase defendant's interest in the property. This appeal

followed.

On appeal, plaintiff presents the following arguments for our

consideration:

POINT I

THE MIDDLESEX COUNTY FAMILY COURT ERRED BY NOT
TAKING INTO CONSIDERATION THAT JJ ELEK ALTERED
THE XXX OAK ST. PROPERTY DISCLOSURE DOCUMENT
BY [CHECKING] THAT THE PROPERTY HAD TERMITES
AS THIS WAS FALSE INFORMATION ACCORDING TO AN
INSPECTION DONE LATER ON BY HOME QUEST AND
LETTER FROM ATTORNEY KENNETH GONZALEZ[.]

POINT II

THE MIDDLESEX COUNTY FAMILY COURT ERRED BY
GRANTING DEFENDANT ATTORNEY IN FACT TO SELL
PROPERTY XXX OAK ST. ALTHOUGH THERE WERE
MULTIPLE EVIDENCE OF MISUSE OF HIS POWER BY
ATTORNEY MICHELLE ROMAN.

POINT III

THE MIDDLESEX COUNTY FAMILY COURT ERRED BY
OVERLOOKING THE FRAUD ATTEMPTED BY ATTORNEY
MICHELLE ROMAN, ATTORNEY KENNETH GONZALEZ AND
MAD TITLE AGENCY AS THEY ATTEMPTED TO [SELL]
PROPERTY XXX OAK ST[.] AND INCLUDE ADDITIONAL

6 A-1242-16T1
 CHARGES IN THE CLOSING COST THAT ARE NOT MY
(APPELLANT) RESPONSIBILITY.

POINT IV

THE MIDDLESEX COUNTY FAMILY COURT ERRED BY
OVERLOOKING THE FACT THAT DEFENDANT STOP[PED]
PAYING THE TAXES FOR OVER A YEAR OF PROPERTY
XXX OAK ST[.] ALTHOUGH IT WAS STATED THAT IT
WAS HIS RESPONSIBILITY IN THE MATRIMONIAL
SETTLE[M]ENT AGREEMENT.

POINT V

RESPONDENT ALSO COMMITTED FRAUD BY HIDING
ASSETS FROM BOTH PROPERTIES AND FAILING TO
PROVIDE A LEGAL RENTAL LEASE OF PROPERTY YYY
OAK ST. AND LIED ABOUT THE REAL REASON I WAS
FORCE[D] TO LEAVE THE PROPERTY[.]

In her pro se brief, plaintiff challenges the court's October

14, 2016 order denying her request to vacate the August 19, 2016

order granting defendant the power to act as her attorney in fact

for the purpose of signing the listing agreement and other

documents necessary to sell the property; and the December 5, 2016

order again granting defendant the power to act as plaintiff's

attorney in fact.4 In each point of her brief, she relies solely

on Rule 4:50-1 to support her claim that the court erred in

4
Plaintiff does not argue the court erred by entering the August
19, 2016 order granting defendant the power to act as plaintiff's
attorney in fact in the first instance. An argument not briefed
on appeal is deemed waived. Jefferson Loan Co. v. Session, 397
N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340
N.J. Super. 94, 103 (App. Div. 2001).

7 A-1242-16T1
entering the October 14 and December 5, 2016 orders. Although

plaintiff did not cite Rule 4:50-1 in support of her motions before

the Family Part, plaintiff contends her requests that the court

vacate the August 19, 2016 order constituted motions for relief

from the order under Rule 4:50-1.5

As the court correctly observed on December 5, 2016,

plaintiff's motions and opposition to defendant's requests for

appointment as her attorney in fact were founded on a request that

the court modify the MSA. Indeed, the court denied plaintiff's

motions and appointed defendant as plaintiff's attorney in fact

because the MSA, which was incorporated in the Dual Final Judgment

of Divorce, provided for the sale of the property. Thus,

plaintiff's motions and opposition to defendant's appointment as

her attorney in fact for purposes of selling the property

constituted motions for relief from the divorce judgment under

Rule 4:50-1. See Eaton v. Grau, 368 N.J. Super. 215, 222 (App.

Div. 2004) (finding requests for relief from Family Part orders

related to the equitable distribution of property are considered

under Rule 4:50-1); see also Connor v. Connor, 254 N.J. Super.

5
Plaintiff did not invoke Rule 4:50-1 in connection with any of
the post-judgment motions filed in this matter. In addition,
plaintiff also does not argue the court erred by denying any
putative request during her series of motions for relief from the
Dual Final Judgment of Divorce, which incorporated the MSA by
reference.

8 A-1242-16T1
591, 601 (App. Div. 1992) (finding parties to a divorce proceeding

may move under Rule 4:50-1 to vacate an MSA). We therefore

consider plaintiff's motions and oppositions as such.

Rule 4:50-1 provides:

On motion, with briefs, and upon such terms
as are just, the court may relieve a party or
the party's legal representative from a final
judgment or order for the following reasons:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.

"Relief [under Rule 4:50-1] is granted sparingly." F.B. v.

A.L.G., 176 N.J. 201, 207 (2003). A determination on a motion for

relief under Rule 4:50-1 is "left to the sound discretion of the

trial court, guided by principles of equity," ibid., "warrants

substantial deference, and should not be reversed unless it results

in a clear abuse of discretion," U.S. Bank Nat'l Ass'n v.

Guillaume, 209 N.J. 449, 467 (2012). An abuse of discretion will

9 A-1242-16T1
be found "when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an

impermissible basis.'" Ibid. (quoting Iliadis v. Wal-Mart Stores,

Inc., 191 N.J. 88, 123 (2007)).

In our consideration of plaintiff's arguments, we observe

that her recitation of the purported facts are almost universally

untethered to any citation to the record before the trial court.

See R. 2:6-2(a)(5) (requiring that an appellant provide a "concise

statement of the facts" that is "supported by references to the

appendix and transcript"). The absence of the required citations

appears easily explained. The record shows that many of the facts

upon which plaintiff relies in her narrative of the alleged events

were never presented to the motion court and, therefore, cannot

provide a basis for a reversal of the court's orders. See State

v. Harvey, 151 N.J. 117, 201-02 (1997) ("An appellate court, when

reviewing trial errors, generally confines itself to the

record.").

In any event, based on our careful review of plaintiff's

submissions to the trial court, we do not discern any basis to

conclude the court abused its discretion by denying plaintiff's

requests to modify the MSA by barring defendant from selling the

property in accordance with the parties' agreement. MSA's "are

generally favored by the courts as a peaceful means of terminating

10 A-1242-16T1
marital strife and discord so long as they are not against public

policy." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999) (quoting

Gordon v. Gordon, 342 Md. 294, 301 (1996)); see also Weishaus v.

Weishaus, 180 N.J. 131, 143 (2004). Although "incorporation of

[an MSA] into a divorce decree does not render it immutable, nor

its terms solely governed by contract law, nevertheless, if found

to be fair and just, it is specifically enforceable in equity."

Eaton, 368 N.J. Super. at 224 (internal citations omitted).

In support of her motions and opposition to defendant's cross-

motions for relief that resulted in the October 14 and December

5, 2016 orders she challenges on appeal, plaintiff offered little

more than assertions that she disagreed with the sale price of the

property, defendant's and the realtor's handling of the sale, and

the allocation of expenses and credits related to the property and

its sale.6 Plaintiff further consistently urged that she thought

it made more sense for her to buy defendant's interest in the

property, subject to contingencies requiring further modifications

6
In plaintiff's certification in opposition to defendant's
December 2016 order to show cause, she asserted defendant's counsel
committed fraud because she submitted a copy of the MSA to the
court that had initials written on it that were different than
those shown on another copy. Plaintiff, however, does not dispute
she testified at the July 14, 2015 divorce proceeding that she
reviewed the MSA with her counsel, agreed to its terms and found
them satisfactory, and entered into the MSA voluntarily. Any
dispute concerning the initials on one copy of the MSA is therefore
of no moment.

11 A-1242-16T1
of the MSA, rather than being required to find another place to

live.

"Rule 4:50-1 'requires proof of exceptional and compelling

circumstances' as it is '[d]esigned to balance the interests of

finality of judgments and judicial efficiency against the interest

of equity and fairness.'" Id. at 222 (citation omitted). A party

seeking relief under Rule 4:50-1 must establish "that enforcement

of the order or judgment would be unjust, oppressive or

inequitable." Ibid.

Here, the court considered plaintiff's submissions, and

concluded her contentions reflected only "buyer's remorse" and she

failed to demonstrate an entitlement to the modification of the

MSA upon which her position rested. We find nothing in plaintiff's

submissions supporting her various motions and opposition to

defendant's cross-motions establishing an entitlement to relief

from the MSA under any of Rule 4:50-1's subsections or showing

that enforcement of the parties' agreement to sell the property

was "unjust, oppressive or inequitable." Ibid. The court

therefore did not abuse its discretion by entering either the

12 A-1242-16T1
October 14 or December 5, 2016 orders plaintiff challenges on

appeal.7

Any of plaintiff's arguments we have not addressed directly

are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.8

7
We reject plaintiff's contention the court did not address her
November 21, 2016 motion. During the December 5, 2016 hearing on
defendant's order to show cause, the court stated the motion was
denied.
8
Plaintiff does not state whether the property was, in fact,
sold on December 6, 2016, as anticipated. If the property was
sold, we would dismiss this appeal as moot. See Greenfield v.
N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006)
(citations omitted) ("An issue is 'moot' when the decision sought
in a matter, when rendered, can have no practical effect on the
existing controversy.").

13 A-1242-16T1