IRINA SANCHEZ v. HERIBERTO RAPHAEL SANCHEZ (2010)

Plaintiff Irina Sanchez appeals from an order denying her motion for a plenary hearing to determine whether a property settlement agreement incorporated in a final judgment of divorce filed on May 19, 2008 should be set aside.   Plaintiff and her former husband, defendant Heriberto Raphael Sanchez, signed the agreement in May 2007.   For the reasons stated below, we dismiss the appeal without prejudice.

Among other things, the agreement addresses equitable distribution and requires plaintiff to pay defendant $60,000 “for his share of the house” and “in lieu” of an obligation for him to pay child support.   Defendant also waived any and all interest he might have in plaintiff's pension plan.

The following facts were disclosed in testimony at a hearing conducted prior to the court's incorporation of the agreement in the judgment.   According to plaintiff, the house had a mortgage of $172,000 and would sell at a price between $350,000 and $450,000.   Their two children were eight and fourteen years of age at the time, and defendant, who had been injured in an accident and had two operations, had a pending application for social security disability benefits.   The trial judge indicated, based on his familiarity with the person who notarized plaintiff's signature, that the agreement was prepared by “We the People.”

Although the judge stated that the provision of the agreement purporting to absolve defendant of child support would be modified, the judge accepted the provisions of the agreement governing distribution of the marital property and advised plaintiff that she could return to seek child support if defendant's application for disability benefits was denied.

Although orders enforcing defendant's right to a cash payment under the agreement were entered on November 6 and December 8, 2008, plaintiff did not seek modification of the agreement or apply for child support until April 2009.   Plaintiff sought that relief by way of cross motion in response to defendant's third motion to enforce plaintiff's obligation to pay him $60,000 for his interest in the house.   Defendant had filed that motion on March 17, 2009.

The trial court denied plaintiff's application on June 11, 2009, and on the same day ordered defendant to pay $76 per week child support effective March 17, 2009.   Plaintiff filed her notice of appeal on July 27, 2009.   Plaintiff did not appeal from the orders enforcing the agreement or apply for a stay of those orders pending appeal.   On October 9, 2009, the judge entered another order enforcing defendant's rights.   Plaintiff applied to this court for a stay, which we denied on December 30, 2009.   On February 16, 2010, the judge again found plaintiff to be in violation of litigant's rights.

This appeal was submitted to us for decision on our September 7, 2010 calendar.   The arguments that are properly before us relate to the judge's denial of her requests to hold a hearing or set aside the property settlement agreement.¹

By letter dated September 17, 2010, plaintiff's attorney advised that she had filed for bankruptcy.   The attorney provided a copy of an order filed by the United States Bankruptcy Court in Case No. 10-17288 on August 16, 2010.   That order confirms plaintiff's plan as amended on the record at a confirmation hearing.   Review of that order does not enable us to determine whether the house referenced in the subject property settlement agreement is included as property of the bankruptcy estate or whether plaintiff's $60,000 obligation to defendant is included as a liability.   Moreover, we cannot determine the date on which plaintiff filed her Chapter 13 petition.

The filing of a bankruptcy petition stays adjudication of equitable distribution in a divorce proceeding if the property to be distributed is the property of the bankruptcy estate.  Clark v. Pomponio, 397 N.J.Super. 630, 634 (App.Div.2008);  see 11 U.S.C.A. § 362(b)(2)(A)(iv) (excluding litigation over “the division of property that is property of the estate” from the scope of the exemption for divorce proceedings).   We are left with nothing but uncertainty about the impact on the bankruptcy proceeding of any decision we might render.

Like the appellant in Uslar v. Uslar, 253 N.J.Super. 289, 292 (App.Div.1992), plaintiff seeks to overturn aspects of the judgment of divorce that could possibly augment the estate.   In Uslar, the panel was “loathe ․ to tread upon the jurisdiction of the Bankruptcy Court” but could not envision its decision “as inimical to the purposes of the automatic stay.”  Id. at 292-93.   In that circumstance, the panel deemed it appropriate to give deference to the bankruptcy judge's view of jurisdiction by issuing a conditional decision.  Id. at 293.

As we have insufficient information to assess the impact of a decision from this court on the bankruptcy proceeding, it is appropriate to refrain from issuing a decision on a matter over which we may lack jurisdiction.   Accordingly, we dismiss the appeal without prejudice and without costs.   If the automatic stay is lifted or the bankruptcy judge gives plaintiff leave to prosecute the appeal, or if the bankruptcy proceeding is concluded without resolution of this controversy, plaintiff may move before this court to restore the appeal, without costs.

The appeal is dismissed.

FOOTNOTES

FN1. Plaintiff also argues that on October 9, 2009 (mistakenly referenced as October 2008 in the point heading), she was denied the right to be heard in opposition to an enforcement motion filed by defendant.   Plaintiff did not file an amended notice of appeal.   Consequently that issue is not properly before us..  FN1. Plaintiff also argues that on October 9, 2009 (mistakenly referenced as October 2008 in the point heading), she was denied the right to be heard in opposition to an enforcement motion filed by defendant.   Plaintiff did not file an amended notice of appeal.   Consequently that issue is not properly before us.

PER CURIAM