On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-413-97.
Before Judges Stern, Collester*fn1 and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In a prior appeal in this post-judgment matrimonial matter, in an unpublished opinion, we concluded the Family Part lacked jurisdiction to consider the application of plaintiff, Leila Lore Leavengood, seeking an increase in child support from Defendant, John M. Leavengood. Leavengood v. Leavengood, A-5637-96T1 (July 22, 1998). Defendant now appeals from an order entered on January 21, 2000, denying his motion for repayment of counsel fees he paid to Charles Resnick, Esq., counsel for plaintiff, in accordance with the order of the Family Part, entered on May 8, 1997, that we reversed in our July 22, 1998 opinion. This case has a lengthy and unusual history in the State of Florida and in New Jersey that is relevant to resolution of the issues on this appeal.
The parties were married in the State of Florida on June 26, 1978. One child, John M. Leavengood, Jr., was born of the marriage, on January 28, 1981. The parties separated in late 1982. On May 23, 1983, the parties were divorced in the Florida courts, after entering into a property settlement agreement. Under the terms of an amended final judgment entered on May 31, 1983, incorporating the terms of that agreement, custody of the child was vested with plaintiff and defendant was required to pay $200 each week in child support until the child reached age eighteen.
In August 1984, plaintiff and the child moved to New Jersey. Defendant has continuously resided in the State of Florida. Defendant's child support obligation was increased by the Florida court to $300 per week, as of June 17, 1985. In 1990, plaintiff filed an application with the Florida court seeking an increase in child support; that application was denied.*fn3
On March 12, 1996, plaintiff and Charles G. Resnick Esq., entered into an agreement to provide legal services, under which plaintiff retained Resnick to represent her in instituting a New Jersey action seeking to establish jurisdiction in New Jersey on issues of child support and related matters. Resnick undertook representation of plaintiff without a retainer, and plaintiff agreed to pay the sum of $50 each month, commencing April 15, 1996, toward payment for legal services rendered by Resnick, which were to be charged at an hourly rate of $150. The agreement recognized that it was possible that defendant may be required to pay for some or all of the legal costs incurred by plaintiff, and it was agreed that Resnick reduce the amount of fees owed to him by plaintiff by any amounts of plaintiff's counsel fees that defendant was ordered to pay.
On August 5, 1996, Resnick filed a complaint against defendant on plaintiff's behalf in the Superior Court of New Jersey, Family Part, Camden County, seeking an order establishing jurisdiction of the New Jersey courts over child support issues. Specifically, plaintiff sought an increase in child support, payment of college costs, and related relief, including payment of counsel fees.
Defendant filed a motion in the Family Part, contesting jurisdiction and seeking dismissal of the complaint. Defendant also sought an award of counsel fees, contending plaintiff's action was frivolous. Plaintiff cross-moved, seeking registration of the Florida divorce judgment and orders in New Jersey.
On November 15, 1996, the Family Part entered an order, denying defendant's motion and granting plaintiff's cross-motion for registration of the Florida orders in New Jersey. On or about November 19, 1996, plaintiff filed a motion seeking an increase in child support; maintenance of health-care coverage for the child; payment of the costs of the child's activities; maintenance of life insurance on defendant's life, naming the child as beneficiary; payment of future college costs of the child; and an award of counsel fees.
Defendant sought a stay from the trial court of the November 15, 1996 order, pending a ruling on his application to us for leave to appeal. By order entered on December 19, 1996, the Family Part denied defendant's application for a stay. On January 2, 1997, we entered an order granting a temporary stay pending consideration of defendant's application for leave to appeal on its merits. On January 9, 1997, we dissolved the stay and entered an order denying defendant's motion for leave to appeal. By order entered on January 22, 1997, we also denied defendant's application for a stay pending his application to the Supreme Court for leave to appeal, but stated that "[a]ny opposition on the merits by defendant [in the Family Part] will be without prejudice to his jurisdictional challenge."
On May 8, 1997, the Family Part entered an order increasing defendant's child support obligation to $450 each week and granted the other relief sought by plaintiff in her complaint. The motion judge issued a letter opinion, also dated May 8, 1997, analyzing the request of plaintiff for an award of counsel fees, and requiring that defendant "shall pay to Mrs. Leavengood on behalf of counsel fees and costs as allowed, $11,764." The May 8, 1997 order required defendant to pay the $11,764 counsel fee, in the following manner:
[T]o Plaintiff's attorney, Charles G. Resnick, Esq., together [with] costs for this Motion of $15, all of which shall be payable by Defendant directly to Charles G. Resnick, Esq. at the ...