Opinion
DOCKET NO. A-0290-12T1
03-24-2015
EUGENE HARVEY WOLKOFF, Plaintiff, v. ARLETTE SARFATI WOLKOFF, Defendant-Appellant.
Arlette Sarfati Wolkoff, appellant pro se. Respondents Budd Larner, P.C. and Thomas D. Baldwin have not filed briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-10-85. Arlette Sarfati Wolkoff, appellant pro se. Respondents Budd Larner, P.C. and Thomas D. Baldwin have not filed briefs. PER CURIAM
Appellant Arlette Wolkoff appeals from an order entered on March 17, 2012, denying her motion to vacate an attorney's lien. She also appeals the denial of two subsequent motions for reconsideration. We affirm.
Appellant retained Thomas D. Baldwin, an attorney at Budd Larner, P.C., to file a post-judgment matrimonial motion for an increase in alimony and life insurance. On January 29, 2007, the motion judge denied appellant's motion and her request for counsel fees.
Appellant retained new counsel and appealed. We remanded for a plenary hearing on her claim of changed circumstances. Wolkoff v. Wolkoff, No. A-3725-06 (App. Div. Aug. 15, 2008) (slip op. at 3-4). We also directed the motion judge to revisit the issue of whether there should be an award of counsel fees. Id. at 4.
While the appeal was pending, Budd Larner moved for an attorney's lien, pursuant to N.J.S.A. 2A:13-5, on fees it claimed were still owed by appellant. Appellant disputed the amount and opposed the motion. Because of the pendency of the appeal, the motion judge ruled that he lacked jurisdiction and dismissed the motion.
After our remand, Budd Larner refiled the motion and the judge heard the matter on September 19, 2008. Appellant did not appear and the motion judge entered an order establishing a charging lien in favor of Budd Larner in the amount of $34,152.68. The judge noted on the record that the order "is not a determination as to the amount that is owed to your firm, but a lien to protect that amount." Initially, the motion judge held that whether Budd Larner is "entitled to that full amount or some lesser amount has to await a plenary hearing."
On November 17, 2008, the judge held a conference on the remand. Appellant appeared without counsel, and the judge explained the effect of the charging lien order he had entered:
But I . . . want to make sure, Ms. Wolkoff, that you understand the order that I entered. Because you do understand that I haven't determined as of this date that . . . Budd Larner is entitled to any fee at all. All that my order says is that, if you get money as a result of a settlement of the main case, or as a result of my making a decision in your favor, then that money would not be paid out until the attorney's fee issue is resolved. And I or somebody determines how much would be due to Budd Larner.
. . . .
I haven't made any rulings on fees yet. If I'm going to do that, it's going to be pursuant to a . . . separate plenary hearing, separate from the plenary hearing that the Appellate Division directed with regard to the alimony issue.
In 2009, Budd Larner moved to enforce the attorney fee lien pursuant to N.J.S.A. 2A:13-5. On May 28, 2009, the motion judge signed a consent order executed by appellant, her attorney, her ex-husband Eugene Wolkoff, Baldwin, and his attorney Lawrence Bloom. The consent order maintained the attorney fee lien as "security," and the parties agreed to submit the disputed fee issue to fee arbitration. The order provided that, "[Arlette Wolkoff] shall promptly elect fee arbitration in accordance with the Rules of the Court providing therefore, and the issue of [her] fee dispute with [Budd Larner] shall be resolved through [fee arbitration]."
In August 2010, the arbitration panel, citing our decision in Wolkoff, supra, slip op. at 20, found that it was inappropriate to render a decision until a plenary hearing was conducted to determine the reasonableness of the counsel fees. The arbitration panel apparently misconstrued our 2008 remand and assumed that the Family Part was going to decide the reasonableness of the counsel fees. Our remand directed only that the motion judge decide whether Eugene Wolkoff should contribute to appellant's counsel fees. We did not direct the motion judge to determine whether Budd Larner's fees were reasonable.
On December 12, 2011, appellant and Eugene Wolkoff settled the matrimonial dispute and signed a consent order, whereby appellant released Eugene from future claims for alimony in exchange for three payments totaling $775,000.
Appellant then moved to vacate the lien, asserting that a charging lien is not permitted for post-judgment matters. A different motion judge heard the matter and entered an order denying her motion to vacate the lien on March 17, 2012. The judge recognized that there is no legal authority for charging liens for post-judgment matters but noted that appellant had consented to the lien. Appellant's two motions for reconsideration were denied on June 8 and August 3, 2012.
Appellant now argues that charging liens are not permitted for post-judgment matters; there were no proceeds from her matrimonial settlement to which a lien can attach; Baldwin violated his contractual obligations, thus voiding the consent judgment; and the fee dispute should be heard in the Law Division instead of the Chancery Division.
Baldwin's lien was for services rendered in a post-judgment matter. As such, N.J.S.A. 2A:13-5 does not itself authorize such a lien. Appellant argues that the lien is void and should be vacated pursuant to Rule 4:50-1(d). Under Rule 4:50-1(d), a party may be relieved from a final order or judgment if it is void. The rule applies to any final judgment, including consent judgments. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). Relief under this rule, however, is granted sparingly. Ibid.
Both parties voluntarily entered into a consent order whereby the previously existing lien would continue to serve as security for Budd Larner's claim of outstanding fees pending resolution through fee arbitration. There is no basis to relieve appellant from that consent order and her application to vacate the lien was properly denied.
At oral argument, appellant informed us that the fee dispute had been resubmitted to the District Fee Arbitration Committee. Appellant subsequently provided an Arbitration Determination indicating that the panel heard testimony on October 2, 2013 and issued a determination on October 23, 2013 awarding $21,944.32 to Baldwin.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION