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Lewis v. Lewis

Decided: July 1, 1993.

JOANNE LEWIS, PLAINTIFF-RESPONDENT,
v.
CHARLES LEWIS, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

Pollock, Wilentz, Clifford, Handler, O'Hern, Garibaldi, Stein

Pollock

The opinion of the court was delivered by

POLLOCK, J.

Like McKeown-Brand v. Trump Castle Hotel & Casino, 127 N.J. 566, 606 A.2d 376 (1993), this case requires that we determine the scope of N.J.S.A. 2A:15-59.1. Specifically, the issue is whether the statute applies to motions. The plain language of the statute leads us to conclude that it does not apply. Consequently, we reverse the judgment of the Appellate Division, which affirmed the order of the trial court imposing sanctions on defendant for filing a motion that the court deemed frivolous.

-I-

Defendant, Charles Lewis, and plaintiff, Joanne Lewis, were divorced in 1985. Plaintiff received alimony of $1,800 per month from the time of the divorce until the spring of 1990, when defendant stopped making payments. In May of that year, plaintiff filed a motion in the Chancery Division, Family Part, to enforce the alimony order. In response, defendant cross-moved to reduce the alimony award. He argued that the sale of his business the preceding year had resulted in changed circumstances justifying reconsideration of the amount of alimony.

The trial court entered an order on December 4, 1990, denying the cross-motion and requiring defendant to resume making payments and to pay back alimony. Noting that defendant continued to receive monthly payments for commissions on premiums, the court determined that although defendant's circumstances had changed, his ability to pay the alimony had not. The court also granted plaintiff's request for attorney's fees. Defendant appealed to the Appellate Division.

Pursuant to Rule 1:10-5, plaintiff filed a motion to enforce litigant's rights, which the Family Court granted on January 25, 1991. The order required defendant to pay arrearages of $14,400 and attorney's fees incurred on the motion. The trial court denied a stay of the December 4, 1990, order pending the outcome of defendant's appeal.

On defendant's appeal of the denial of the stay, the Appellate Division remanded to the trial court for entry of a stay conditioned on defendant's posting adequate security. On remand, the parties agreed that defendant would post a $40,000 bond.

Defendant failed to post the bond, so plaintiff moved on April 12, 1991, to vacate the stay. Plaintiff also moved to execute on the monthly payments from the sale of defendant's business, because defendant had relocated to another state and had liquidated all other assets in New Jersey.

On April 26, 1991, defendant filed the cross-motion that is the subject of this appeal. He sought an order reducing the amount of the December 4, 1990, order from $14,400 to $4,400 and compelling discovery of plaintiff's income and assets. In his supporting affidavit, defendant asserted that the trial court had overestimated his yearly income and should reconsider the amount of alimony set in the December 4, 1990, order.

Plaintiff argued that because of defendant's appeal, the trial court no longer had jurisdiction to amend the terms of the December 4, 1990, order, stating: "Thus defendant knows, irrespective of whatever the merits may be in the application, that this application is totally frivolous, improper and should never have been filed." Plaintiff also challenged defendant's allegations that the trial court had overestimated defendant's income. Because of the cross-motion's alleged "frivolous" nature, plaintiff sought costs from defendant's attorney under N.J.S.A. 2A:15-59.1. Plaintiff argued that defendant's cross-motion was subject to sanctions either as a defense interposed for the purpose of delay or as an action without basis in law or equity based on false allegations of fact.

At oral argument before the trial court, defendant's attorney retreated from his request to review the December 4, 1990, order. Instead, he argued that the purpose of the cross-motion was to reduce the amount of the bond. He contended that the trial court had jurisdiction to consider that issue and that the cross-motion was proper. He ...


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