Opinion
DOCKET NO. A-0131-14T2
07-13-2016
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. 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
Arlette Sarfati Wolkoff appeals from the April 11, 2014 Family Part order enforcing a fee arbitration determination and directing the immediate dispersal of escrowed funds. Ms. Wolkoff also appeals from the June 27, 2014 order denying her motion for reconsideration. We affirm.
This is Ms. Wolkoff's fourth appearance before us on this matter. See Wolkoff v. Wolkoff, No. A-3725-06, (App. Div. Aug. 15, 2008) (Wolkoff I); Wolkoff v. Larner, No. A-1206-12 (App. Div. Oct. 24, 2014) (Wolkoff II); Wolkoff v. Wolkoff, No. A-0290-12 (App. Div. Mar. 24, 2015) (Wolkoff III). We repeat relevant facts from our opinion in Wolkoff III:
[Ms. Wolkoff] 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 [Ms. Wolkoff's] motion and her request for counsel fees.
[Ms. Wolkoff] retained new counsel and appealed. We remanded for a plenary hearing on her claim of changed circumstances. [Wolkoff I, supra, slip op. at 3]. We also directed the motion judge to revisit the issue of whether there should be an award of counsel fees. [Ibid.]
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 [Ms. Wolkoff]. [Ms. Wolkoff] 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. [Ms. Wolkoff] 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. [Ms. Wolkoff] appeared without counsel, and the judge explained the effect of the charging lien order he had entered[.]
. . . .
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 [Ms. Wolkoff], 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 I, supra, slip op. at 14], 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, [Ms. Wolkoff] and Eugene Wolkoff settled the matrimonial dispute and signed a consent order, whereby [Ms. Wolkoff] released Eugene from future claims for alimony in exchange for three payments totaling $775,000.
[Ms. Wolkoff] 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 [Ms. Wolkoff] had consented to the lien. [Ms. Wolkoff]'s two motions for reconsideration were denied on June 8 and August 3, 2012.
[Wolkoff III, supra, slip op. at 1-4.]
We rejected Ms. Wolkoff's arguments that the charging lien was not permitted in a post-judgment matter; 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. Id. at 4-5.
While Ms. Wolkoff's appeal of the March 17, 2012 order was still pending, she filed an order to show cause in Essex County on September 18, 2012 seeking enforcement of the fee arbitration determination. After hearing argument, the judge denied her motion on September 25, 2012. Ms. Wolkoff appealed, and we affirmed. Wolkoff II, supra, slip op. at 10.
While her appeal in Wolkoff II was pending, the fee arbitration committee determined that the $21,944.32 fee charged by counsel was reasonable. Ms. Wolkoff appealed the determination to the Disciplinary Review Board (DRB) and, by letter dated November 26, 2013, her appeal was denied. Ms. Wolkoff then appealed a second time and, on February 20, 2014, the DRB affirmed the committee's determination and dismissed her appeal.
On February 28, 2014, Thomas Baldwin moved in Union County for entry of judgment confirming the fee arbitration award, pursuant to Rule 1:20A-3(e), and for enforcement of the attorney fee lien, pursuant to N.J.S.A. 2A:13-5. Ms. Wolkoff opposed the motion, claiming the DRB was "considering further submissions due to a service issue." The Family Part judge found no support for Ms. Wolkoff's claim, and entered an order on April 11, 2014 granting Baldwin's motion and directing the attorney holding $35,000 in escrow as security for Budd Larner's lien to "immediately send . . . a check made payable to 'Budd Larner, P.C.' in the sum of $21,944.32 . . . in full and final satisfaction of defendant's fee payment obligation."
On May 29, 2014, Ms. Wolkoff filed a motion for reconsideration and to vacate the April 11, 2014 order. Her motion was denied on June 27, 2014. Ms. Wolkoff then filed this appeal of the April 11 and the June 27, 2014 orders. On March 24, 2015 we affirmed the March 17, 2012 order denying Ms. Wolkoff's motion to vacate the May 28, 2009 consent order. Wolkoff III, supra, slip op. at 5-6.
On this appeal, Ms. Wolkoff again challenges the May 28, 2009 consent order she executed with her attorney, Robert J. Jenny, Jr., her ex-husband Eugene Wolkoff, her former attorney, Thomas Baldwin, and his attorney Lawrence Bloom. She again claims that the Union County Chancery Division did not have jurisdiction to enter the consent order.
We first note that Ms. Wolkoff entered into the May 28, 2009 consent order before the Union County court and sought relief from that court in March 2012. Moreover, we considered and rejected her challenges to the March 17, 2012 order in Wolkoff III, supra, slip op. at 1.
It is elementary that a party cannot submit to a court's jurisdiction and then challenge that court's jurisdiction after an unfavorable ruling. See Saudi Basic Indus. Corp. v. Exxonmobil Corp., 194 F. Supp. 2d 378, 407 (D.N.J. 2002) (defendant surrenders any jurisdictional objections when he avails himself of the benefits of a jurisdiction by instigating a lawsuit against the plaintiff), aff'd in part, vacated in part 364 F.3d 102 (2004). Moreover, an order consented to by both parties is not appealable. Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950).
We are convinced that any further delay in the payment of fees owed to Mr. Baldwin is unwarranted. Therefore, we direct that within ten days of our opinion the attorney holding the escrow funds disburse $21,944.32 to Thomas 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