Opinion
DOCKET NO. A-6161-12T3
04-29-2015
MARJORIE M. WALSH, Plaintiff-Respondent, v. J. GARVIN WALSH, Defendant-Appellant.
J. Garvin Walsh, appellant, argued the cause pro se (Christopher W. Hyde, on the brief). Joel M. Harris argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-973-02. J. Garvin Walsh, appellant, argued the cause pro se (Christopher W. Hyde, on the brief). Joel M. Harris argued the cause for respondent. PER CURIAM
At the time of the oral argument, Mr. Hyde was ineligible to practice law. We have fully considered Mr. Hyde's arguments contained in his merits brief. We granted defendant's request to participate in oral argument before us.
Defendant appeals from (1) that part of a January 4, 2013 order directing defendant to liquidate his assets to pay a money judgment and finding that defendant failed to fully disclose his financial situation by artificially deflating his finances, and a June 28, 2013 order denying reconsideration; (2) a June 28, 2013 order denying relief from prior orders to pay alimony, and counsel and expert fees, and an October 7, 2013 order denying reconsideration; (3) that part of a July 17, 2013 order granting plaintiff's motion for enforcement of prior judgments entered against defendant and awarding plaintiff counsel fees, and an October 7, 2013 order denying reconsideration; and (4) an October 7, 2013 order directing defendant to pay plaintiff the July 17, 2013 award of counsel fees and awarding plaintiff additional counsel fees. We affirm.
I.
Plaintiff and defendant (the "parties") married in June 1976. On October 31, 2003, they divorced pursuant to a dual judgment of divorce (JOD), the enforcement of which has been the subject of numerous motions and appeals. We address the procedural history of each set of orders separately.
We also considered plaintiff's appeal of two orders back-to-back with this appeal. Walsh v. Walsh, No. A-0182-13 (App. Div. Apr. 29, 2015).
A.
The parties previously appealed the equitable distribution of assets, award of alimony, and calculation of counsel and expert fees. In an unpublished opinion, we affirmed in part, reversed in part, and remanded certain issues, including the award of counsel and expert fees, to the trial court for further consideration and clarification. Walsh v. Walsh, No. A-4046-03 (App. Div. Aug. 11, 2006). On remand, the court directed defendant to pay plaintiff $50,000 in counsel fees and 50% of the expert fees (the "2007 order"). Defendant appealed the 2007 order and we affirmed in an unpublished opinion, Walsh v. Walsh, No. A-2200-07 (App. Div. Sept. 10, 2010), certif. denied, 205 N.J. 101 (2011).
Plaintiff sought enforcement of the 2007 order and on October 11, 2011 defendant cross-moved for relief based on alleged fraudulent misrepresentation by plaintiff (the "2011 cross-motion"). On December 13, 2011, the court entered judgment for plaintiff; on February 17, 2012, denied reconsideration; and on April 13, 2012, denied reconsideration of its denial of reconsideration.
While the appeal of the 2007 order was pending, defendant allegedly discovered that plaintiff withheld material evidence relevant to the calculation of counsel and expert fees, which he claimed constituted fraud upon the court.
B.
In 2008, defendant appealed an order modifying his alimony obligation and denying his application to recuse the trial judge. We reversed and remanded the alimony order but affirmed the denial of recusal in an unpublished opinion, Walsh v. Walsh, No. A-5084-07 (App. Div. May 13, 2010). On remand, the court modified defendant's alimony obligation retroactive to March 4, 2008 (the "2011 order"). In defendant's 2011 cross-motion, he also moved for relief from the 2011 order, contending that the modification should have been retroactive to January 30, 2008. On December 13, 2011, the court denied the relief sought; on February 17, 2012, denied reconsideration; and on April 13, 2012, denied reconsideration of its denial of reconsideration of the 2011 order (the "three prior orders").
On April 16, 2012, defendant filed a notice of appeal from the three prior orders. On April 26, 2012, the trial court submitted a letter stating that defendant had not been fully disclosing his assets, making a "practice of discounting his assets without disclosing the extent of the discounts." On September 14, 2012, we dismissed the appeal because defendant failed to timely file a brief.
In February 2013, defendant filed another motion for relief from the three prior orders. On June 28, 2013, the court denied defendant's motion.
C.
In July 2012, plaintiff filed a motion in aid of litigant's rights to enforce outstanding judgments, and defendant subsequently filed a cross-motion to stay payments and vacate previous orders. On January 4, 2013, the court ordered defendant to "liquidate some of his assets to satisfy the judgment previously entered" on December 13, 2011. In her statement of reasons, the judge incorporated the court's previous finding that defendant had "artificially deflated [his] true financial picture" and that he did not "fully disclose his financial situation." On June 28, 2013, the court denied defendant's motion for reconsideration, and on October 7, 2013, denied reconsideration of its denial of reconsideration.
On July 17, 2013, the court granted plaintiff's motion for enforcement and awarded counsel fees. On October 7, 2013, the court denied defendant's motion for reconsideration and awarded plaintiff additional counsel fees.
II.
On appeal, defendant argues that the court abused its discretion by denying him relief from the three prior orders under Rule 4:50-1(f) because (1) it failed to make the requisite findings of fact and conclusions of law under Rule 1:7-4(a); (2) his motions for relief were filed timely; (3) exceptional circumstances warrant relief; (4) his due process rights under the United States Constitution and New Jersey State Constitution were violated; and (5) res judicata was inapplicable. Defendant also argues that the court erred in ordering him to liquidate his assets because the assets are protected from claims by creditors, and that the award of counsel fees to plaintiff on July 17 and October 7, 2013 was an abuse of discretion.
A.
We conclude that the denial of relief from the three prior orders was not an abuse of discretion.
We accord substantial deference to the Family Part's fact finding due to its "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the trial court'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. of Am., 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).
Here, the court denied defendant relief from the three prior orders because it concluded that defendant's claims were barred by res judicata. The judge concluded:
Defendant's application should be deemed deficient on this basis alone. First, the [c]ourt has issued a final judgment as to the issue of alimony and counsel and expert
fees. Second, the [c]ourt has clearly identified the parties and the issues raised by the parties. Notably, the [c]ourt's prior [o]rders make clear that the issues of fraud, alimony and counsel and expert fees have been addressed, in depth, by the [c]ourt numerous times, resulting in multiples [o]rders. As such, [d]efendant's application is barred by res judicata.
The doctrine of res judicata prevents the re-litigation of an issue once it has been fairly litigated and there is: "(1) a final judgment by a court of competent jurisdiction, (2) identity of issues, (3) identity of parties and (4) identity of the cause of action." Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 172-73 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 164 N.J. 188 (2000).
Despite defendant's argument to the contrary, defendant clearly seeks to re-litigate issues from the 2007 order, which was affirmed on appeal, and the 2011 order, both of which were the subject of the dismissed 2012 appeal. Our courts have noted that:
The repetitiveness of such motions is noted by the continued reassertion of issues and allegations after their determination and establishment as the law of the case. The filing of such motions, either without an appeal of the original determination or irrespective of the pendency of such an appeal, shows clearly an attitude that the litigant will use (or abuse) the judicial process until some trial judge "gets it right" by deciding in his favor. . . .
Many litigants with legitimate claims await hearings in the family court. Judicial time and energies are scarce societal resources, especially in the family courts. We cannot permit frivolous matters, sparked by a personal vendetta, to consume the attention and resources to the detriment of deserving litigants who wait for their legitimate motions to be heard.
[Kozak v. Kozak, 280 N.J. Super. 272, 278 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997).]
The judge aptly noted that
[d]efendant's application is woefully out of time, duplicative[,] and a waste of precious judicial resources. In essence, [defendant] is seeking reconsideration of three previous reconsideration [o]rders. . . . Defendant cannot avoid these time limitations by merely filing reconsideration motion after reconsideration motion and then argue that his time to file another reconsideration motion runs from the time he receives an [o]rder denying his previous reconsideration request, and not when the underlying issues were initially addressed.
We also note that defendant's appeal from the three prior orders is substantially out of time. R. 2:4-1 (requiring that an appeal be filed within forty-five days from the final judgment).
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The court therefore properly denied defendant relief from the three prior orders, issuing detailed findings and well-reasoned opinions in response to each and every motion filed by defendant, leaving no reason, much less exceptional circumstances under Rule 4:50-1(f), to disturb the previous orders.
B.
We also conclude that the court's order directing defendant to liquate his assets was not an abuse of discretion.
Here, the judge ordered defendant to "liquidate some of his assets to satisfy the judgment previously entered by the [c]ourt in the amount of $78,250.60, the total amount reduced to judgment by the [o]rder of December 13, 2011, minus any credits for payments made, within twenty (20) days of the date of this [o]rder." In denying reconsideration, the judge wrote:
As an initial matter, the [order] does not state that a judgment will be entered on [d]efendant's retirement assets. Additionally, while N.J.S.A. 25:2-1[b] generally protects certain trust funds from creditors, it will not insulate an individual retirement account from a family [c]ourt's reach when the account holder has failed to make support payments. N.J.S.A. 25:2-1[b](2). Moreover, New Jersey [c]ourts have found that an award of counsel fees to be a form of support.There is no reason to disturb the judge's order. Defendant's assets are not protected from the court's reach to satisfy prior judgments for alimony, and counsel and expert fees. See DiGiacomo v. DiGiacomo, 256 N.J. Super. 404, 409 (App. Div. 1992) (noting that counsel fees "are considered to be in the nature of support"); Pelusio v. Pelusio, 130 N.J. Super. 538 (App. Div. 1974).
Additionally, the court's incorporation of its prior finding that defendant had "artificially deflated [his] true financial picture" and that he did not "fully disclose his financial situation" was accurate and not an abuse of discretion. The court's letter on April 26, 2012, alerting us to defendant's practice of underreporting his assets, included a copy of an April 24, 2012 letter from defendant admitting as much.
C.
Finally, we conclude that the July 17, 2013 and October 7, 2013 awards of counsel fees to plaintiff were proper.
Our review of fee determinations is highly deferential. "'[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation and internal quotation marks omitted).
In its July 17, 2013 order, the court awarded plaintiff $717.50 in counsel fees:
In exercising its discretion, the [c]ourt has carefully considered all of the relevant factors, especially, the good faith of the parties and is satisfied that [plaintiff] should be entitled to counsel fees and costs for filing the within motion. The crux of [plaintiff's] motion was the enforcement of prior [judgments]. [Defendant] has failed to satisfy this judgment for well over a year and a half. Moreover, [defendant] admits to using a portion of the funds . . . to satisfy monies owed to his attorney instead of the outstanding judgment. This behavior is inexcusable and demonstrates sufficient bad faith to warrant the imposition of counsel fees[.]The judge listed the relevant factors under Rule 5:3-5(c), and made specific findings of fact, which supported the judge's finding of bad faith by defendant. There was no abuse of discretion here, especially when the judge carefully reviewed plaintiff's counsel's affidavit of service and reduced the award to $717.50 to reflect the costs associated with the motion.
In her October 7, 2013 order, the judge awarded plaintiff $1092 in counsel fees:
In exercising its discretion, the [c]ourt has carefully considered all of the relevant factors, especially: (1) the financial ability of the party seeking the award to pay the counsel fees; (2) the financial ability of the party against whom the fees are sought to pay said fees; and (3) the good faith or bad faith of the parties.
It would be highly inequitable for this [c]ourt to continue to permit [defendant] to file meritless reconsideration applications which in turn compels [plaintiff] to file opposition.Once again, there was no abuse of discretion here. The extensive procedural history of this case clearly supports the judge's findings and award of counsel fees to plaintiff. As noted by the judge, "[d]efendant has systematically filed repetitive and frivolous motions seeking reconsideration of issues that have been decided years ago. The within application should be denied for being duplicative alone."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION