Opinion
DOCKET NO. A-1125-13T2
04-10-2015
SHIFRA SCHWARTZ, Plaintiff, v. JOEL SCHWARTZ, Defendant-Appellant/Cross-Respondent.
Diamond & Diamond, P.A., attorneys for appellant/cross-respondent (Richard S. Diamond, on the briefs). Joseph Gachko, attorney for respondent/cross-appellant Kevin J. Daly.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-998-95. Diamond & Diamond, P.A., attorneys for appellant/cross-respondent (Richard S. Diamond, on the briefs). Joseph Gachko, attorney for respondent/cross-appellant Kevin J. Daly. PER CURIAM
Defendant Joel Schwartz appeals from a September 27, 2013 order finding him in violation of litigant's rights after defendant's disbarred former divorce attorney, Kevin J. Daly, moved to enforce a prior order awarding him counsel fees. Daly cross-appeals the denial of his request for immediate payment and sanctions. Finding that Daly had no standing to enforce an order in the Family Part, we reverse on the appeal and affirm on the cross-appeal.
Plaintiff Shifra Schwartz retained attorney Daly to represent her in a divorce proceeding against defendant. After lengthy pre-trial litigation and a fifty-four-day trial, the parties' marriage was dissolved in 1998. Defendant was ordered to pay thirty-five percent of plaintiff's counsel fees and costs. On January 5, 1999, an order for counsel fees and costs was entered specifying that defendant owed "the amount of $86,131.76 together with interest at 5.5%" to "Kevin J. Daly, P.C." Four months later, Kevin J. Daly, P.C. docketed the January 5, 1999 order as a judgment in favor of the corporation.
On July 23, 2001, a second order was entered that addressed various post-divorce disputes between the parties as well as three issues concerning defendant's counsel fee obligation. First, the court granted defendant's request for a $10,000 credit for two payments he made after the January 5, 1999 order, reducing defendant's obligation to $76,131.76. The 2001 order, however, states that the credit was granted for payment obligations to "Kevin Daly, Esq." rather than "Kevin J. Daly, P.C.", which is listed as the payee in the 1999 order. Second, the court ordered that defendant's upcoming payments be made to "Kevin Daly, Esq. [] at the rate of $1,000 per month until paid in full." Third, the court granted defendant's request to compel plaintiff to "provide proof of her payment of her proportionate share [sixty-five percent] of her counsel fee obligation to Kevin Daly, Esq." Daly was disbarred December 2001.
Daly calculated that starting from the 1999 order through August 31, 2013, the total amount of interest owed to him was $61,351.87.
Without holding an evidentiary hearing or making factual findings, the 2013 motion judge found defendant in violation of litigant's rights and fixed arrears owed Daly at $137,483.63, including accrued interest. The judge required defendant to pay $1000 per month, but stayed the order pending appeal. The judge denied Daly's request for immediate payment or sanctions, including the requested sanction of incarceration pending payment in full.
"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) (citations omitted). "[C]onclusions of law are reviewed de novo." Zaman v. Felton, 219 N.J. 199, 216 (2014).
Plaintiff, the former wife, is not a party to this post-judgment enforcement action, nor is Daly a party to the underlying family action. Kevin J. Daly, P.C. has a judgment against defendant. It may enforce it in the same manner as any other creditor. R. 4:59-1. The Chancery Division, Family Part has jurisdiction over actions "unique to and arising out of a family or a family-type relationship." R. 5:1-2(a). Actions between professionals who are creditors and those obligated to pay their fees are in no way "unique to" a family relationship or a divorce. Plaintiff's disbarred former-lawyer has no basis for seeking enforcement in the Family Part of the judgment of his former professional corporation.
We do not render any opinion as to whether Daly individually has standing to enforce this judgment outside of the Family Part.
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We reverse on the appeal and affirm on the cross-appeal. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION