Opinion
DOCKET NO. A-3450-13T3 DOCKET NO. A-4847-13T3
11-24-2015
CARLA J. SADEJ, Plaintiff, v. JESSE D. SADEJ, Defendant-Respondent, and ARTURI, D'ARGENIO, GUAGLARDI & MELITTI, LLP, Appellant, and LAWRENCE H. KLEINER, LLC, Respondent. CARLA J. SADEJ, Plaintiff-Respondent, v. JESSE D. SADEJ, Defendant-Appellant, and LAWRENCE H. KLEINER, LLC, and STEPHEN SINISI, ESQ., Respondents.
Arturi, D'Argenio, Guaglardi & Meliti, LLP, appellant pro se in A-3450-13 (Jason S. Nunnermacker, of counsel and on the brief). Jesse D. Sadej, respondent pro se in A-3450-13 and appellant pro se in A-4847-13. Carla J. Sadej, respondent pro se in A-4847-13. Lawrence H. Kleiner, LLC, respondent pro se in A-3450-13 and A-4847-13 (Lawrence H. Kleiner, on the brief). Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for respondent Stephen Sinisi in A-4847-13 (John P. O'Toole, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2208-09. Arturi, D'Argenio, Guaglardi & Meliti, LLP, appellant pro se in A-3450-13 (Jason S. Nunnermacker, of counsel and on the brief). Jesse D. Sadej, respondent pro se in A-3450-13 and appellant pro se in A-4847-13. Carla J. Sadej, respondent pro se in A-4847-13. Lawrence H. Kleiner, LLC, respondent pro se in A-3450-13 and A-4847-13 (Lawrence H. Kleiner, on the brief). Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for respondent Stephen Sinisi in A-4847-13 (John P. O'Toole, on the brief). PER CURIAM
These appeals, calendared back-to-back, are consolidated for the purposes of this opinion only. In appeal No. A-3450-13, appellant Arturi, D'Argenio, Guaglardi & Melitti (ADGM) appeals from that part of the February 12, 2014 Family Part order, which authorized the disbursement of a portion of funds held in escrow to respondent Lawrence H. Kleiner, LLC (Kleiner). In appeal No. A-4847-13, appellant Jesse D. Sadej (Jesse) appeals from the March 28, 2014 Family Part order, which denied his motion for reconsideration of that part of the February 12, 2014 order denying his motion to vacate equitable distribution and modify alimony and child support. We affirm both orders.
The order also authorized the disbursement of a portion of the escrow funds to the court-appointed receiver, Stephen Sinisi, Esq. ADGM does not appeal from that part of the order.
We refer to plaintiff and defendant by their first names for ease of reference. We mean no disrespect in so doing.
We painstakingly review the procedural history of these matters in order to place these appeals in a proper perspective. In May 2002, Jesse and plaintiff Carla J. Sadej (Carla) retained ADGM to represent them in litigation instituted by the Borough of Seaside Park (the Ocean County matter). The Sadejs asserted a counterclaim against the Borough and others for estoppel and malicious use of process.
We shall sometimes refer to Carla and Jesse collectively as the Sadejs.
While the Ocean County matter was pending, in 2008, Carla filed a complaint for divorce in Bergen County, where she and Jesse resided (the matrimonial matter). Kleiner represented Jesse in that matter.
After several years of litigation in the Ocean County matter, all claims and counterclaims were dismissed before trial. On appeal and cross-appeal, we affirmed the dismissal of the Borough's claims, reversed the dismissal of and reinstated the Sadejs' claims, and remanded for further proceedings on the reinstated claims. See Borough of Seaside Park v. Sadej, No. A-6596-06 (App. Div. July 19, 2009) (slip op. at 23, 49).
The Sadejs terminated ADGM prior to the remand trial in the Ocean County matter. In October 2010, ADGM filed a complaint against the Sadejs in Bergen County to collect outstanding attorney's fees incurred in the Ocean County matter (the collection matter). In turn, the Sadejs filed a complaint in Bergen County against ADGM for malpractice (the malpractice matter). A Bergen County judge later denied ADGM's motion for summary judgment and dismissed the collection matter without prejudice. ADGM appealed.
The record does not reveal what happened to the malpractice matter.
Prior to resolution of the appeal, on December 2, 2010, Judge Alexander H. Carver entered a dual final judgment of divorce (FJOD) in the matrimonial matter. The FJOD equitably distributed the parties' marital assets and required Jesse to pay permanent alimony in the amount of $3300 per month and child support in the amount of $283 per week for the parties' three children. The FJOD also required the Sadejs to pay Kleiner's fees and the fees of the court-appointed receiver, Stephen Sinisi, Esq. Jesse appealed from that part of the FJOD concerning equitable distribution and alimony.
In the meantime, in February 2011, Kleiner notified ADGM that he had been retained to represent the Sadejs on the remand in the Ocean County matter. ADGM advised Kleiner of its intent to assert an attorney's lien against the proceeds of any judgment the Sadejs obtained in Ocean County matter. Kleiner agreed to grant ADGM an unquantified lien on the proceeds of any settlement or award to the Sadejs. In June 2011, Kleiner filed a substitution of attorney in the Ocean County matter, which confirmed ADGM's attorney's lien in an "amount to be determined."
The Ocean County matter settled for $125,000. In February 2012, ADGM filed an application in that matter regarding its attorney's lien and sought to restrain Kleiner from disbursing the settlement funds pending resolution of the Bergen County collection matter. Ultimately, the court restrained Kleiner from disbursing $50,000 of the settlement funds.
On May 16, 2012, we affirmed Judge Carver's equitable distribution award in the matrimonial matter. Sadej v. Sadej, No. A-2347-10 (App. Div. May 16, 2012) (slip op. at 12), certif. denied, 213 N.J. 538 (2013). We found the judge correctly imputed income to defendant for the purposes of calculating alimony, but reversed and remanded for the judge to make findings of fact and conclusions of law on the amount imputed, and, if necessary, reduce the amount and recalculate the alimony award. Id. at 19-21. We also remanded for the judge to explain why he concluded that $3300 per month was the appropriate alimony amount. Id. at 26. We instructed that due to the passage of time, the remand may require updated information from both parties, including the status of the parties' real estate, Jesse's current employment situation, and Jesse's efforts to find employment since entry of the FJOD. Ibid.
Thereafter, in a December 17, 2012 consent order, the parties resolved ADGM's attorney's lien application in the Ocean County matter (the Ocean County consent order). The Ocean County consent order perfected ADGM's lien as to the settlement funds "without prejudice" to the parties' rights in the Bergen County collection and malpractice matters, and required Kleiner to hold the funds in escrow (the escrow funds). The Ocean County consent order provided that the perfection of ADGM's lien "shall not be dispositive of any amount owed to ADGM by [the Sadejs] in the [collection matter]." Regarding disbursement of the escrow funds, the Ocean County consent order specifically provided as follows:
Disbursements of the [escrow funds] shall only occur upon one of the following events:
a. Written agreement of ADGM and [the Sadejs];
b. Final adjudication of the [collection] [m]atter, in which case disbursements shall be made to the prevailing party. If ADGM prevails in the [Bergen County collection] [m]atter, the [escrow funds] will serve as a credit against the total award in ADGM's favor. If the [Sadejs] prevail in the [collection] action, [then] then [escrow funds] will be disbursed to [the Sadejs].
c. If ADGM prevails in the [Bergen County collection] matter, the [escrow funds] shall be distributed in accordance with Paragraph 3(b) without prejudice to [the Sadejs'] rights to seek to recoup that amount as an element of damages in the [malpractice action].
On September 3, 2013, Judge Carver issued an order and written opinion on remand. The judge noted that despite several attempts to gain Jesse's cooperation, Jesse "consistently refused to participate," and thus the plenary hearing was held with only Carla attending. At the hearing, Carla permanently waived alimony, but not alimony or child support arrears, which the judge found had a combined total of $146,825. The judge made findings on imputed income and the alimony amount based on evidence presented at the matrimonial trial; recalculated and reduced child support to $276 per week, effective April 19, 2013, based on Carla's updated case information statement; and ordered Kleiner to release Jesse's share of the escrow funds to the Bergen County Probation Department to be credited against his support obligations. Jesse did not appeal from the September 3, 2013 order.
On December 9, 2013, Jesse filed a motion to vacate the equitable distribution provision of the FJOD and to modify alimony and child support. On January 6, 2014, he filed a supplemental motion requesting a change of venue and a new matrimonial trial.
Carla filed a cross-motion for an order directing Kleiner to release $25,000 to her from the escrow funds and release the remaining $25,000 to the Bergen County Probation Department in accordance with Judge Carver's September 3, 2013 order. ADGM opposed Carla's cross-motion, arguing that it had a perfected lien on the escrow funds under the Ocean County consent order, and Carla's motion was procedurally defective because the Ocean County consent order was a final judgment that could only be vacated or modified in the Ocean County matter pursuant to Rule 4:50-1.
Carla also sought other relief that is not pertinent to this appeal.
Judge Bonnie Mizdol found that Jesse failed to show a substantial change in circumstances that would warrant a modification of alimony and child support. The judge also found that the equitable distribution award was affirmed on appeal and there was no evidence of fraud warranting relief from the FJOD pursuant to Rule 4:50-1.
Jesse's motion papers in the appendix on appeal contain no updated case information statement, financial information or other competent evidence necessary for the court to determine if he had a substantial change in circumstance. --------
Judge Mizdol determined that Kleiner had a lien in the amount of $46,470, Sinisi had a lien in the amount of $16,279.50, and their liens were perfected by the FJOD filed on December 10, 2010, and thus had priority over ADGM's lien, which was perfected two years later in the Ocean County consent order. In a February 12, 2014 order, the judge denied Jesse's motions, denied Carla's cross-motion, and ordered $37,000 of the escrow funds to be distributed to Kleiner and $13,000 to be distributed to Sinisi to partially satisfy their respective liens. ADGM appealed from the February 12, 2014 order.
On August 11, 2014, we affirmed the denial of summary judgment to ADGM and the dismissal of the complaint in the Bergen County collection matter. Arturi, D'Argenio, Guaglardi & Melitti, LLP v. Sadej, No. A-4094-11 (App. Div. Aug. 11, 2014) (slip op. at 14). The record does not show that the Bergen County collection matter was reinstated.
On February 21, 2014, Jesse filed a motion for reconsideration of Judge Mizdol's February 12, 2014 order. In a March 28, 2014 order and written opinion, Judge Mizdol denied the motion. The judge found that Jesse presented no new facts or circumstances to warrant reconsideration. Jesse appealed from the March 28, 2014 order.
ADGM's Appeal
ADGM argues that the Ocean County consent order was a final order establishing its lien; Carla's motion was procedurally defective because the consent order could only be vacated or modified in the Ocean County matter pursuant to Rule 4:50-1; and by entering into the Ocean County consent order, Kleiner and the Sadejs waived their rights to the escrow funds. Notably, ADGM does not challenge Judge Mizdol's ruling authorizing the disbursement of a portion of the escrow funds to Sinisi, whose lien was established in same final judgment that established Kleiner's lien.
Our review of a Family Part judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citation omitted). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Id. at 413. We intervene only when convinced that the judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). Applying these standards, we discern no reason to disturb Judge Mizdol's ruling.
Following the filing of a pleading, an attorney's lien attaches to any judgment or final order. N.J.S.A. 2A:13-5; see also Sauro v. Sauro 425 N.J. Super. 555, 575 (App. Div. 2012), certif. denied, 213 N.J. 389 (2013). Pursuant to N.J.S.A. 2A:13-5, the attorney is considered an equitable assignee of the judgment to the extent of the debt owed to him or her. Horowitz v. Weishoff, 318 N.J. Super. 196, 205-06 (App. Div. 1999). The priority of liens is determined by the "first in time, first in right" rule. Sagi v. Sagi, 386 N.J. Super. 517, 525 (App. Div. 2006); see also Les Realty Corp. v. Hogan, 314 N.J. Super. 203, 206 (Ch. Div. 1998) (holding that the "first in time, first in right" rule applied to give priority to a mortgage that was recorded before a child support judgment was docketed).
Here, Kleiner's lien was perfected by the FJOD, which was docketed on December 2, 2010, two years before the Ocean County consent order was docketed. Accordingly, Judge Mizdol was correct that Kleiner's lien had priority over ADGM's lien.
More importantly, the Ocean County consent clearly provided that the escrow funds would be disbursed to the prevailing party in the Bergen County collection matter; if ADGM was the prevailing party, the escrow funds would be applied as a credit against any award in that matter; and if the Sadejs were the prevailing party, the escrow funds would be disbursed to them. Because the dismissal of the Bergen County collection matter was affirmed on appeal and the matter was never reinstated, ADGM was not the prevailing party, and thus not entitled to the escrow funds.
We also reject ADGM's argument that Carla's cross-motion was procedurally defective. Carla did not seek to vacate or modify the Ocean County consent order. Rather, she sought to enforce Judge Carver's September 3, 2013 order setting the alimony and child support arrears and ordering Kleiner to release Jesse's share of the escrow funds to the Bergen County Probation Department.
We have considered ADGM's waiver argument in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Jesse's Appeal
Several of Jesse's arguments concern vacating Judge Carver's equitable distribution and alimony and child support awards. Because we affirmed Judge Carver's equitable distribution award, we decline to address the arguments concerning equitable distribution. See Washington Commons LLC v. City of Jersey City, 416 N.J. Super. 555, 564 (App. Div. 2010), certif. denied, 205 N.J. 318 (2011) (holding that an issue determined on the merits in a prior appeal cannot be re-litigated in a later appeal of the same case, even if of constitutional dimension) (citing State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971)). We also decline to address what appears to be a challenge to Judge Carver's September 3, 2013 remand order, as Jesse never appealed from that order and the time to appeal long-ago expired. We limit our review to whether Judge Mizdol erred in denying Jesse's motion for reconsideration of her order denying his motion to modify alimony and child support.
"Motions for reconsideration are governed by Rule 4:49-2, which provides that the decision to grant or deny a motion for reconsideration rests within the sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "Reconsideration should be used only where 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. (citation and internal quotation marks omitted). We will not disturb a trial judge's denial of a motion for reconsideration absent a clear abuse of discretion. Ibid.
We discern no abuse of discretion here. Jesse did not participate in the remand proceedings and provided no competent evidence, either to Judge Carver, to Judge Mizdol, or to this court, which would have warranted a modification of his support obligations. Jesse's rambling arguments to the contrary have no merit whatsoever and warrant no discussion. R. 2:11-3(e)(1)(E).
The orders entered on February 12, 2014 and March 28, 2014 are affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION