Opinion
DOCKET NO. A-5179-14T2
10-25-2016
L.C., Plaintiff-Appellant, v. V.C., Defendant-Respondent.
James M. Doyle, attorney for appellant (Jane M. Personette, on the brief). Einhorn, Harris, Ascher, Barbarito & Frost, attorneys for respondent (Stephen P. Haller, of counsel and on the brief; Jennie L. Osborne, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2355-12. James M. Doyle, attorney for appellant (Jane M. Personette, on the brief). Einhorn, Harris, Ascher, Barbarito & Frost, attorneys for respondent (Stephen P. Haller, of counsel and on the brief; Jennie L. Osborne, on the brief). PER CURIAM
After an eight-year marriage, plaintiff and defendant were divorced in 2007, pursuant to a Dual Judgment of Divorce, which incorporated a property settlement agreement. During the marriage the parties had multiple children. It is not disputed the parties have been embroiled in controversy over custody and parenting time for over ten years, incurring substantial litigation costs.
Plaintiff appeals from a Family Part order denying her motion to hold a sum in trust, which she conveyed to defendant to reimburse him for a portion of the fees he paid on her behalf to child custody experts and professionals. Plaintiff contends defendant may be responsible for all of the fees and seeks to have the sum held in trust until this issue is resolved. Following our review of the record and the applicable legal principles, we affirm.
We provide a brief factual background, derived from the record and an unpublished opinion previously issued in this matter. At the time of their divorce, the parties agreed plaintiff would be the primary caretaker. Unable to resolve the question of defendant's parenting time, the parties agreed to engage the services of a parent coordinator to help them formulate the terms and conditions of defendant's parenting time. When these services proved unsuccessful, the parties agreed to retain a mediator and utilize therapists to help improve defendant's relationship with their oldest child and devise a parenting time schedule with the other children. However, despite these services, defendant's relationships with the children did not improve.
To protect the parties' privacy and preserve their anonymity, we do not cite this opinion.
The defendant later moved for sole custody of the younger children, which the court denied. However, the court did appoint various experts and professionals to help facilitate parenting time between defendant and the children, and ordered the oldest child to engage in counseling to assist in coping with the "massive familial dysfunction caused by [p]laintiff's behavior." The court also ordered plaintiff to pay twenty-five percent and defendant seventy-five percent of the fees charged by these experts and professionals.
Defendant allegedly paid these fees in full, and the court entered a judgment against plaintiff and in favor of defendant, representing plaintiff's twenty-five percent share of the fees charged by the experts and professionals (initial judgment).
Plaintiff later sold her home and at closing, plaintiff filed an order to show cause why this and two additional judgments entered against plaintiff and in favor of defendant should not be held in defendant's attorney's trust account pending plaintiff's application to vacate all three judgments. In addition to the initial judgment, two smaller judgments were entered, which represented plaintiff's share of the fees charged by an appointed guardian ad litem and a counsel fee plaintiff was ordered to pay defendant.
Plaintiff's emergent application sought to set aside the three judgments for the following reason. She had observed the oldest child had always exhibited "remarkable resistance" to parenting time with defendant. Plaintiff subsequently learned defendant had been recently indicted for "sexually abusing" that child and that the Division of Child Protection and Permanency (DCPP) had substantiated defendant for sexual abuse against not only the oldest child but also another of the parties' children.
A copy of the indictment was not included in the record, and plaintiff did not provide the specific citation to the offense or offenses with which defendant had been charged.
Defendant appealed the DCPP's finding, which is pending before the Office of Administrative Law.
In her application for an order to show cause, plaintiff stated she intended to file a motion to vacate the three judgments entered against her pursuant to Rule 4:50-1, because the expenses incurred to remediate the oldest child's relationship with defendant, which included compensating the experts and professionals for their fees, were caused entirely by defendant's wrongful conduct, warranting he pay for all of these expenses without her contribution.
Plaintiff argued that if defendant were convicted and she prevailed on her motion to vacate these judgments, she would have difficulty recovering the money she had given to defendant to satisfy these judgments. She anticipated that, if convicted, defendant would not return any money owed to her because of the acrimony between them, or would be thwarted from collecting money from him because he might convey his assets to a third party.
The court later converted the order to show cause into a motion, returnable on a later date. The court also ordered the two smaller judgments be paid directly to defendant out of the house sale proceeds, but ordered proceeds sufficient to satisfy the initial judgment be deposited into defendant's attorney's trust account until further order of the court.
Subsequently, the court denied plaintiff's motion and authorized the disbursement of the escrowed funds to defendant from his attorney's trust account, upon defendant providing proof he paid the subject experts' and professionals' fees in full. The court determined there was no legal basis to withhold the funds from defendant. The court reasoned, even if defendant were convicted and plaintiff persuaded a court the initial judgment should be vacated, he could readily satisfy the judgment because he retained multiple income sources, owned assets sufficient to reimburse plaintiff, and continued to receive sufficient income from a trust.
On appeal, plaintiff contends the trial court erred by releasing the funds to defendant. Although she argues the trial court's reasoning was flawed, she does not specify how. She does not contest the trial court's finding defendant is not, given his wealth, judgment proof. Plaintiff does argue that the indictment by the grand juries provided the trial court "ample basis" to order the retention of funds in trust pending the resolution of the criminal matter.
She does not appeal the release of the two smaller judgments to him.
There were in fact two separate indictments against defendant. The first indictment was dismissed because the assistant prosecutor failed to present to the grand jury what was deemed to be exculpatory evidence. The State re-presented the case, along with the alleged exculpatory evidence, to another grand jury, which handed down another indictment. It is the latter indictment that was pending when plaintiff filed her application to hold the monies she conveyed to defendant in trust. --------
Since the briefs were submitted, we have ascertained the second indictment has been dismissed. There remains the disposition of the appeal of the DCPP matter, but plaintiff did not advance any argument the DCPP matter, even if it were affirmed on appeal, in any way impairs defendant's ability to honor his debts.
We accord substantial deference to a Family Part's factfinding due to its "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the Family Part's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
While the dismissal of the second indictment perhaps moots plaintiff's argument, it is not known if the State will again present the matter to another grand jury. For the sake of completeness, we conclude the court did not abuse its discretion when it declined to retain the funds in defendant's attorney's trust account. Given defendant's financial resources, it was reasonable for the court to conclude it unlikely plaintiff will suffer any prejudice by the release of this money from the trust account to him. There is no evidence the court's conclusion defendant's wealth will enable him to readily reimburse plaintiff, which is not even challenged on appeal, is "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo, supra, 395 N.J. Super. at 193-94.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION