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Finkel v. Finkel

May 10, 1996

BARBARA FINKEL, PLAINTIFF-APPELLANT,
v.
STUART I. FINKEL, DEFENDANT-RESPONDENT.



On appeal from Superior Court, Chancery Division, Family Part, Bergen County.

Approved for Publication May 10, 1996.

Before Judges King and Landau. The opinion of the court was delivered by Landau, J.A.D.

The opinion of the court was delivered by: Landau

The opinion of the court was delivered by LANDAU, J.A.D.

This is an appeal from a post-judgment order of the Chancery Division, Family Part, dated May 10, 1995, that denied a motion by plaintiff Barbara Finkel cast as a request for an increase in alimony equivalent to the counsel fees incurred by her in a related General Equity suit plus the fees incurred in connection with the motion.

Referring to the transcript of the General Equity proceeding, the Family Part Judge concluded that any determination as to counsel fees should have been made in the General Equity Part, and that the request was not properly before the Family Part. Upon consideration of the reasons for the General Equity proceeding, we conclude that plaintiff's motion should have been granted. Our opinion leads to a remand for determination of the amount of fees and for direction as to the method of payment by defendant Stuart I. Finkel.

I.

The parties were divorced in 1981 by judgment that incorporated a property settlement agreement. In March and April 1993, orders were entered modifying certain provisions of the original judgment. It suffices for purposes of this opinion to note that those orders directed defendant to pay substantial arrearages in alimony and child support, and modified but continued his obligations for alimony, child support, and college education for the children of the marriage.

By order of May 7, 1993, *fn1 the Family Part appointed a trustee of defendant's interest in the former matrimonial residence. The trustee was charged with conveying defendant's interest to plaintiff, who was to pay $180,000 for his interest, subject to credits for: (a) one-half of the outstanding first mortgage balance; (b) an obligation owed to Anchor Savings Bank including reimbursement to plaintiff for a payment made in connection therewith; and (c) the amount needed to satisfy all judgments (except plaintiff's) outstanding against defendant in order to ensure clear title. The balance remaining after these credits was to be held by the trustee together with certain other sums due defendant under the property settlement agreement. An opinion attached to the May 7 order recites:

The trustee was appointed in the best interests of the child [sic] and to ensure that the defendant's college-cost obligation, in the future, be satisfied from a fund available for that purpose, especially in view of his actual income being less than that imputed to him; his lack of savings, and his threatened bankruptcy.

Under the order, the trustee was directed to "disburse money as necessary to satisfy to the extent possible defendant's obligation to provide for the college educations of his children. The trustee's fee shall be paid out of the proceeds in the trust, as shall be approved by the court."

Shortly after the May 7 order was entered, it was discovered that defendant had given a third mortgage on his interest in the matrimonial residence to the National Institute for Child Custody and Divorce Awareness (N.I.C.C.D.A.) prior to, but undisclosed in, his case information statement dated July 13, 1992. Defendant's case information statement was an exhibit before the court at the time of the May 7, 1993 order. That third mortgage was also made subordinate to amounts of income taxes owed by defendant, and to his personal counsel fees. After entry of the May 7 order, the Internal Revenue Service (I.R.S.) filed notices of tax lien against defendant.

By order to show cause in the Family Part, plaintiff immediately sought to file a supplemental complaint to set aside the N.I.C.C.D.A. mortgage as fraudulent, and to determine that the interest of the I.R.S. was subordinate to the title of the trustee. Consideration of this application was stayed, however, because defendant had by then filed for federal bankruptcy relief.

After the Bankruptcy Court's trustee abandoned defendant's interest in the marital home, plaintiff again renewed her application in the Family Part. The application was denied, and plaintiff was referred to the "Chancery Division," i.e., the General Equity Part. Interestingly, plaintiff was awarded $1000 in counsel ...


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