Opinion
DOCKET NO. A-0487-11T2
02-20-2013
LINDA CLEMENTE, Plaintiff-Respondent, v. JOHN CLEMENTE, Defendant-Appellant. ANSELL GRIMM & AARON, P.C., and WITHUM SMITH & BROWN, Intervenors-Respondents.
Stephen M. Pascarella argued the cause for appellant (Pascarella & Associates, P.C., attorneys; Mr. Pascarella, on the brief). James G. Aaron argued the cause for pro se respondent and Withum Smith & Brown (Ansell, Grimm & Aaron, P.C., attorneys; Mr. Aaron, of counsel and on the brief; Lynne Petillo, Kristine M. Bergman and Bridget K. Dorney, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-379-04C.
Stephen M. Pascarella argued the cause for appellant (Pascarella & Associates, P.C., attorneys; Mr. Pascarella, on the brief).
James G. Aaron argued the cause for pro se respondent and Withum Smith & Brown (Ansell, Grimm & Aaron, P.C., attorneys; Mr. Aaron, of counsel and on the brief; Lynne Petillo, Kristine M. Bergman and Bridget K. Dorney, on the brief).
Respondent, Linda Clemente, has not filed a brief. PER CURIAM
Defendant John Clemente appeals from a September 1, 2011 post-judgment order denying his and plaintiff Linda Clemente's joint request to have the court execute a consent order that would, among other things, abrogate defendant's obligation to pay plaintiff's counsel and expert fees as required by prior orders and judgments. Because we conclude that Judge Terence P. Flynn acted well within his discretion in declining to execute the proposed order, which he found amounted to a fraud on the court, and by allowing intervention of plaintiff's former counsel and forensic accountant, Ansell, Grimm & Aaron, P.C. and Withum Smith & Brown (intervenors), who would have been adversely affected by its entry, we affirm, substantially for the reasons set forth in Judge Flynn's forty-four page opinion.
Defendant also appealed from a post-judgment order entered December 23, 2010 awarding counsel fees for the entire course of post-judgment litigation with the exception of the bankruptcy proceedings. He has, however, not briefed any issue relating to that order. Accordingly, we treat the appeal of that order as abandoned. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). Although plaintiff also appealed from the September 1, 2011 order, she has not filed a brief. Her appeal was thus administratively dismissed.
The extensive history of the parties' unfortunately bitter divorce and post-judgment proceedings has already been set forth in prior opinions of the trial court, Clemente v. Clemente, No. FM-13-379-04 (Ch. Div. Aug. 7, 2006); this court, Clemente v. Clemente, No. A-0290-06 (App. Div. Nov. 28, 2008), certif. denied, 198 N.J. 473 (2009); and the United States District Court for the District of New Jersey, In re Clemente, No. 12-37 (D.N.J. Mar. 19, 2012). We decline to rehash that history here. Although defendant, in a now-familiar pattern, lists ten issues in his notice of appeal, he has briefed only two: that the trial court abused its discretion in failing to sign the consent order presented by the parties, and that Judge Flynn should have recused himself because of the ill will he harbored for defendant. Neither of these issues warrants extended discussion in a written opinion, R. 2:11-3(e)(1)(E), and we deem all others waived. Sklodowsky, supra, 418 N.J. Super. at 657.
Judge Flynn has carefully explained all of the reasons why executing a proposed consent order that would have abrogated counsel and expert fee awards reduced to judgment and deemed non-dischargeable in bankruptcy without notice to those in whose favor the judgments had been entered would have been a gross dereliction of his judicial responsibilities. We agree and have nothing to add to his thoughtful and thorough analysis.
We reject as frivolous defendant's contention that Judge Flynn bore him ill will demonstrated by the court's having notified the affected judgment creditors of the parties' proposed consent order and allowing them to intervene to insure that all parties having an interest in the matter were properly before the court. Not only would it have been unnecessary for Judge Flynn to recuse himself in those circumstances had defendant moved for his recusal, it would have been inappropriate for him to do so. Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App. Div.) ("It is not only unnecessary for a judge to withdraw from a case upon a mere suggestion that he is disqualified: it is improper for him to do so unless the alleged cause of recusal is known by him to exist or is shown to be true in fact."), certif. denied, 107 N.J. 60 (1986).
Undoubtedly, Judge Flynn's opinion was strongly worded. He characterized the actions of the parties and their counsel in this matter as a conspiracy designed to unlawfully deprive intervenors of the compensation already awarded them by the courts and to perpetrate a fraud on this court and the trial court through the use of a secret and illegal side agreement. We find his conclusions accurate and his well-chosen comments amply justified. We see no evidence of bias.
We note that the counsel to which the court referred are not counsel appearing on this appeal.
--------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION