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Maragliano v. Maragliano

May 05, 1999


Before Judges Havey, Skillman and Lesemann.

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


Submitted March 29, 1999

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

This is an appeal from an interlocutory order, entered on September 25, 1998, which denied defendant's motion seeking, among other things, the removal of the court-appointed Special Fiscal Agent and Rent Receiver (the Receiver) and the vacation of a series of orders entered by the Receiver. We granted leave to appeal because of our concerns about the trial court's delegation of judicial powers to the Receiver.

On September 8, 1997, the court entered an order consented to by defendant's original counsel appointing the Receiver to manage defendant's investment properties. In addition to the usual provisions, this order stated:

"4. In addition to authority and responsibility provided in paragraphs 1, 2 and 3 above, the Special Fiscal Agent and Rent Receiver, Seymour Chase, shall have submitted to him any and all pretrial motions and applications in writing. Upon receipt of any such applications, the Special Fiscal Agent and Rent Receiver shall render his decision, in writing. "5. Upon the decision of the Special Fiscal Agent and Rent Receiver, both Plaintiff and Defendant shall have ten (10) days in which to appeal said decision to this Court. If [sic] the event that any party does not do so, their right to appeal said decision will be deemed waived."

This order further provided that the Receiver could charge "a fee of 5% of the rental income collected and his services at an hourly rate of $275.00 per hour."

Pursuant to these provisions, the Receiver subsequently issued a series of orders, including one which increased defendant's support obligations and awarded plaintiff counsel fees and another which ordered the sale of certain properties and business equipment owned by defendant and his companies. Defendant, who was representing himself at that time, did not seek review by the court of any of these orders, as authorized by paragraph five of the September 8, 1997 order.

On August 26, 1998, after he had retained new counsel, defendant filed a motion for the removal of the Receiver and the vacation of all orders he had entered. This motion also sought a reduction in the support obligation which the Receiver had imposed and various other related relief. Defendant's certification submitted in support of this motion asserted that although he had authorized his prior attorney to consent to the appointment of a rent receiver, he had not consented to the part of the September 8, 1997 order which delegated more expansive powers to the Receiver. Defendant objected to the court's purported delegation of judicial authority to the Receiver and also asserted that the Receiver's orders exceeded the authority conferred upon him by the September 8, 1997 order. In addition, defendant alleged that the Receiver had mismanaged his properties.

The trial court denied the motion, without Discussion of its authority to delegate judicial decision-making authority to a receiver.

In granting defendant's motion for leave to appeal from the order memorializing this ruling, we stayed all "further action" by the Receiver pending the outcome of the appeal. On December 14, 1998, we entered a further order which vacated the support order entered by the Receiver and remanded the case to the trial court for entry of an appropriate pendente lite support order. Pursuant to this limited remand, the trial court subsequently entered a support order.*fn1

If a trial court finds that a supporting spouse has "default[ed] in complying with [a pendente lite support order]" or "neglect[ed] or "refus[ed]" to give "reasonable security" for the "observance" of such an order, it may "award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and appoint a receiver thereof." N.J.S.A. 2A:34-23. Moreover, the court may "cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just." Ibid. Therefore, a court has the authority in appropriate circumstances to appoint a receiver to manage the property of a supporting spouse to assure compliance with pendente lite support obligations. See Culp v. Culp, 242 N.J. Super. 567, 570-71 (Ch. Div. 1990).

However, the Divorce Act does not authorize a court to delegate judicial powers to a receiver. The only authorization brought to our attention for a delegation of judicial authority is Rule 4:41, dealing with the appointment of masters, which is made ...

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