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Tedards v. Auty

Decided: April 21, 1989.


On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Brody and Ashbey. The opinion of the court was delivered by Brody, J.A.D.


[232 NJSuper Page 543] Plaintiff brought this action for abuse of process (a writ of ne exeat) in which he seeks compensatory and punitive damages from an attorney (defendant) who had represented plaintiff's former wife (wife) in post-judgment proceedings. Defendant had obtained the writ and used it to have plaintiff arrested

and incarcerated overnight until he posted a bond in the amount of $67,500, the full amount of the wife's demand. The spouses thereafter settled their dispute. The trial judge in the present action granted defendant's motion for summary judgment. He held that even if defendant had abused the ne exeat process, plaintiff was not harmed because the judge who had issued the ne exeat could properly have issued a capias ad respondendum on the evidence presented and produced the same result. We reverse.

An understanding of the issue on appeal requires some understanding of the dispute between the former spouses that prompted issuance of the writ.*fn1 They were divorced by a dual judgment entered in early March 1982 several weeks after a six-day trial in late January. The judgment provided for joint custody of their 12-year-old son, the only child of the marriage. Plaintiff had primary custody. The judgment required the wife to "pick up the child after school, give him supper and return him to the [Englewood] residence of the Father at 7:30 P.M." The boy stayed with each parent on alternate weekends. Plaintiff is a member of the bar of New York and Washington, D.C. When he had to be in Washington, he flew there and back the same day so that he could be home in New Jersey to receive the boy at 7:30 p.m.

The underlying dispute centered on disposition of certain residential real estate in Washington, D.C. that the spouses held as an investment. At the time of the divorce the property was encumbered with a mortgage having a balance of about $105,500. The judgment provides that the equity be divided into thirds, one-third to each spouse and one-third to defray the primary and secondary school expenses of their son who was attending a private school in New York City. However, the judgment is not entirely clear as to the amount of the wife's

share, when she would be entitled to receive it and how to dispose of any balance of the son's share when he completes secondary school.

The relevant provisions are as follows:

3. With regard to the Washington, D.C. residence, it has been stipulated that said residence has a net equity of $184,500.00. The [wife] shall execute a Proper Deed transferring all of her right, title and interest in and to the Washington, D.C. residence to the [plaintiff], said deed to be prepared by the [plaintiff] in a form valid and proper under the laws of the District of Columbia. Out of the stipulated net equity in the Washington, D.C. residence of $184,500.00 the [wife] shall be entitled to the sum of $61,500.00. The [plaintiff] shall be entitled to the sum of $61,500.00. The infant child of the marriage shall be entitled to the application of $61,500.00 which will be the remaining one-third (1/3) of the net equity to be applied towards his complete pre-college education.

Depending upon the then financial condition of the [wife] and the [plaintiff] either party may make an application for further equitable distribution of those funds unexpended for the infant child's education and to delineate the responsibility for college costs for said child.

4. The [wife's] share of $61,500.00 shall carry interest at 13.5% per annum, but shall be paid to her no later than 6 months after the date of the Final Judgment. If not so paid the Washington, D.C. residence shall be placed on the open market for sale and the net proceeds thereof shall be divided in thirds, the [plaintiff] becoming trustee for the infant child for one-third (1/3) to be applied to said child's pre-college education as stated heretofore. Any balance remaining upon said child's graduation from High School shall be subject to application as heretofore stated.

Plaintiff apparently interpreted these provisions to mean that he had a choice of either paying the wife $61,500 for her share within six months after the date of the judgment or selling the property and paying her one-third of the proceeds of sale after discharging the existing mortgage. In either case, the wife was first obliged to convey to him her interest in the property.

In February 1982, after the trial but before entry of judgment, plaintiff moved for an order directing the wife to convey to him her interest in the Washington property. Plaintiff supported his motion with a certification in which he stated that he wanted to purchase the wife's interest in the property within the allotted six months and that he needed a deed from her so that he could "finance" the property "to raise the sufficient

funds due the [wife]." He added that he also needed the refinancing to pay personal debts and to maintain alimony payments. The wife thereupon conveyed to plaintiff her interest in the Washington property.

Plaintiff did not pay the wife $61,500 within six months after entry of judgment, nor did he list the property for sale during that period. He claimed that he could not afford to pay the wife her share, and could not sell the property for its fair value, as estimated at the time of the divorce, because of unanticipated extraordinarily high interest rates on real ...

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