Opinion
DOCKET NO. A-0079-11T1
02-21-2013
JEANNE A. COURBOIN, Plaintiff-Respondent, v. ROBERT C. COURBOIN, JR., Defendant-Appellant.
Robert C. Courboin, Jr., appellant pro se. Cohn Lifland Pearlman Herrmann & Knopf, L.L.P., attorneys for respondent (Joshua P. Cohn and Julie L. Kim, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1380-09.
Robert C. Courboin, Jr., appellant pro se.
Cohn Lifland Pearlman Herrmann & Knopf, L.L.P., attorneys for respondent (Joshua P. Cohn and Julie L. Kim, of counsel and on the brief). PER CURIAM
Defendant Robert C. Courboin, Jr. appeals from certain provisions of the parties' Amended Final Judgment of Divorce (JOD) and from a post-judgment order awarding plaintiff, Jeanne A. Courboin, limited power of attorney to effectuate the sale of the parties' marital home. For the reasons that follow, we affirm the JOD and the post-judgment order.
Robert and Jeanne Courboin married on August 24, 1985. They have one child, W.C., who was born in 1996, and has special needs. Plaintiff filed a complaint for divorce on June 1, 2009. By consent order dated February 16, 2011, plaintiff was granted sole legal and physical custody of W.C.
Trial began in May 2011. After two days of testimony, the parties engaged in settlement negotiations. They reached agreement as to child support and equitable distribution of the marital assets, including the marital residence and the parties' respective business interests, bank accounts, and credit card debts. The only unresolved issue was counsel fees, which the court reserved decision on.
After the terms of the settlement agreement were placed on the record, defendant testified that he "underst[ood] that those terms [would then] be placed into a judgment of divorce, which [would] control the terms of [the] divorce." He agreed that the judgment of divorce would be a "binding court order," and stated that he was "willing to be bound by these terms." He stated that he was entering into the agreement freely and voluntarily, and when he was asked whether he had been forced or coerced into the agreement, he responded, "Not at all."
In addition, defendant agreed to list the marital home for sale by July 15, 2011, and pay the maintenance and carrying costs of the marital home until it was sold. However, when presented with the listing agreement, defendant refused to sign. As a result, plaintiff sought enforcement, and on August 24, 2011, the trial judge entered an order (the August 24 Order) appointing plaintiff as attorney-in-fact for defendant with limited power of attorney, solely with regard to the sale of the parties' marital residence. The August 24 Order indicated that it was necessary as the result of defendant's "failure . . . to timely list the marital residence for sale in accordance with the instruction of the Court . . . on June 8, 2011[.]" The order enabled plaintiff to perform all acts required to sell the parties' marital residence, including execution of the listing agreement, negotiation of sales price, and execution of any and all closing documents necessary to perform sale of the property.
Also on August 24, 2011, the court issued the JOD, which memorialized the terms of the Property Settlement Agreement entered into by the parties in open court on June 8, 2011. Each paragraph of the JOD includes citations to the transcript, identifying the points at which the parties discussed and agreed upon the respective issues at the hearing. The JOD was made effective as of June 8, 2011.
Proceeding pro se, defendant filed a notice of appeal on September 2, 2011, seeking to vacate paragraphs 18, 20, and 23 of the JOD, and paragraph 1 of the August 24 Order. On October 6, 2011, defendant moved for a stay of the August 24 Order and the three challenged paragraphs of the JOD pending his appeal to this court. The trial court denied defendant's motion on October 25, 2011, and we denied his request for a stay on November 2, 2011.
Prior to filing a notice of appeal, defendant was represented by two different attorneys.
Plaintiff argues that defendant's appeal should be dismissed as interlocutory as the issue of counsel fees was still outstanding when the notice of appeal was filed. Paragraph 25 of the JOD addressed counsel fees as follows:
Counsel for the Wife shall submit an application for consideration of counsel fees as it relates to the effect/impact of the series of e-mails, correspondence and other communication by the Husband during the course of this litigation, with the Husband's counsel to have an opportunity to respond. If the court finds that any counsel fees are appropriate, then the Order for counsel fees to be imposed against the Husband shall be addressed by separate Order.
On August 25, 2011, plaintiff submitted an affidavit in support of her application for counsel fees. Defendant filed no response to this submission, but filed a notice of appeal from the JOD on September 2, 2011. On October 25, 2011, the trial court granted plaintiff's request for counsel fees and directed that defendant be served with a certification of services. On November 10, 2011, plaintiff filed a certification of services seeking $5,449.90. On January 10, 2012, the trial court entered an order requiring defendant to pay $3,500 in counsel fees.
While we recognize that Rule 2:2-3 requires that a judgment must be final as to all parties and all issues in order to be eligible for appeal, the only remaining issue of counsel fees was decided before either party's appellate brief was filed. Moreover, if an appeal is improvidently filed before resolution of an issue such as counsel fees, the party seeking fees should move before this court for a limited remand, or for dismissal of the appeal as interlocutory. Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304 (App. Div. 2005).
Notwithstanding defendant's procedural misstep, plaintiff did not move before this court for a limited remand, she did not move to dismiss the appeal as interlocutory, and she shows no prejudice. Under these circumstances, we exercise discretion and grant defendant leave to appeal as within time. It would not serve the interests of justice to dismiss the appeal, only to have defendant re-file.
Plaintiff next argues that defendant's appeal of the JOD is procedurally improper because he did not first file a motion to modify or vacate the provisions of the JOD in the trial court, nor did he file a motion to set aside the judgment in accordance with Rule 4:50-1. Plaintiff further argues that defendant cannot appeal the JOD because it was entered with his consent.
"A judgment or order entered with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions." Pressler & Verniero, Current N.J. Court Rules, comment 2.2.3 on R. 2:2-3 (2013). Moreover, defendant cannot take a different position on appeal regarding the provisions he agreed to on the record before the trial court. See River Vale Planning Bd. v. E & R Office Interiors, Inc., 241 N.J. Super. 391, 402 (App. Div. 1990); Pressler & Verniero supra, comment 4 on R. 2:6-2.
The comment to Rule 2:2-3 further states that "[a]lthough relief from a consent judgment is not obtainable by appeal, recourse may be sought pursuant to R. 4:50-1." Pressler & Verniero, supra, comment 2.2.3 on R. 2:2-3. In DeAngelis v. Rose, 320 N.J. Super. 263 (App. Div. 1999), we dismissed the plaintiff's appeal of an order that memorialized the settlement agreed upon by the parties on the record: "Insofar as plaintiff attempts to appeal the . . . order confirming the settlement reached on the day of trial, that appeal is dismissed." Id. at 281. As in DeAngelis, defendant attacks an order that memorializes a settlement he reached with plaintiff in open court on June 8, 2011. He may not now appeal those provisions to which he freely, voluntarily, and intelligently agreed on the record.
Moreover, defendant's claims lack merit. Defendant argues that the child support award was based on faulty calculations. Paragraph 18 of the JOD requires defendant to pay $288 in child support per month. Defendant quotes several provisions of the Child Support Guidelines, but provides no analysis of the provisions or argument as to why the Guidelines support a different outcome. He merely states that the trial court did not "question the accuracy of [his] or [plaintiff's] income" and that plaintiff "provided no proof" of her income, which has led to a "300 to 400% error."
Defendant also challenges the parties' obligations for W.C.'s special needs expenses. Paragraphs 18 and 20 provide that plaintiff and defendant are responsible for 53% and 47%, respectively, of these expenses. The trial judge employed the Child Support Guidelines Worksheet in determining defendant's initial child support obligation. Then, as agreed by the parties, the judge deviated from the Guidelines in order to give defendant a "dollar for dollar credit on what the government pays" the child through Social Security. At the time of trial, W.C. was receiving $503 in Social Security benefits per month. Defendant's child support obligation was thus reduced by $503 from $791 to $288. Defendant agreed to this amount and testified that he was financially able to satisfy this support obligation.
At the time of trial, defendant was unemployed and collecting $754 per month in Social Security benefits. According to defendant, this amount was expected to decrease on September 1, 2011, to $610. The court determined that defendant earned $478 in interest income per month by applying a 3% rate of return to $829,000, which was the combined value of defendant's $694,000 inheritance and $135,000 Florida residence. The court also imputed $36,000 per year to defendant, which results in $692 per week. Thus, combining defendant's weekly interest income and weekly imputed income, the court determined that defendant had a weekly income of $1170. The court applied the same 3% rate of return to plaintiff's investment income.
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A child support award may be modified if the party seeking modification can make a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157-59 (1980); Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000). Defendant filed his appeal less than three months after testifying in court that he was financially able to comply with his child support obligation, and has failed to even argue on appeal that a change in circumstances warrants a reduction of his child support obligation. Defendant's arguments regarding child support thus lack merit.
In his notice of appeal, defendant indicates that he is challenging paragraph 23 of the JOD, which prohibits him from directly contacting the court, plaintiff's counsel, and plaintiff's experts. In his brief, defendant indicates that he does not wish to pursue this relief: "I had planned to appeal a multiple person Restraining Order issued by [the judge], but you make it so hard, it's easier for me to just ignore it!" As this issue is not briefed on appeal, it is waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, supra, comment 4 on R. 2:6-2.
Despite his efforts to vacate several portions of the JOD, defendant seeks selective enforcement of others. Defendant argues that plaintiff has failed to comply with paragraph 19 of the JOD, which requires the parties to exchange their Federal and State Income Tax Returns by June 15 of each year. He seeks "a $500 per day fine against [plaintiff] for every day her signed tax return is not supplied to [him] after June 30 each year." This obligation, however, was not to take effect until 2012. Plaintiff attached her Federal and State Income Tax Returns for 2010 to her case information statement that she filed on May 11, 2011. Therefore, defendant's request for plaintiff's tax returns was premature.
Finally, defendant challenges the August 24, 2011 Order, giving plaintiff limited power of attorney to effectuate the sale of the marital home. Although defendant agreed that he would be responsible for the maintenance and carrying costs of the marital home through closing, he asks that we revoke plaintiff's power of attorney so that he and plaintiff may enter "a written agreement . . . describing who is responsible for what, until the property is sold." The JOD has already resolved these issues. Paragraph 4 provides that defendant "shall continue to be responsible for maintaining the operating expenses at the marital residence . . . with a credit to [defendant] of 50% of these expenses to be paid by [plaintiff] . . . at the time of closing on the marital residence."
Given defendant's refusal to sign the listing agreement, and plaintiff's concerns that defendant would not cooperate with the execution of any documents related to the sale of the home, the judge was justified in entering the order. The order does not take the property away from defendant, as he suggests in his brief. Rather, the order merely permits plaintiff to negotiate and execute any closing documents necessary to effectuate the sale of the marital home "if the defendant fails to sign any document in a timely fashion." The order does not alter the provisions of the JOD that require the parties to split the proceeds of the sale equally and require plaintiff to reimburse defendant for fifty percent of the carrying and maintenance costs he incurs through closing.
We find that defendant agreed to all of the provisions of the JOD he now challenges. His claims are without merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION