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Johnson v. Johnson

February 5, 2007

ELLEN J. JOHNSON, PLAINTIFF,
v.
DAVID L. JOHNSON, DEFENDANT-APPELLANT.
SEYMOUR RUBIN, RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Passaic County, Docket No. FM-16-410-97.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: December 20, 2006

Before Judges Cuff, Fuentes and Baxter.

In this post-judgment matrimonial matter, we review an order that requires defendant David L. Johnson to pay seventy- five percent of an accountant's $54,440 bill. We reverse and remand for an evidentiary hearing that will include an examination of the reasonableness of the bill.

In October 1996, plaintiff Ellen J. Johnson filed a complaint for divorce. A January 14, 1997 order appointed Seymour Rubin, C.P.A., to evaluate and verify defendant's income from various business interests. Initially, the pendente lite order required defendant to pay the accountant's fee. On May 28, 1998, plaintiff and defendant executed a property settlement agreement in which defendant agreed to pay seventy-five percent of the fees due to the accountant.

On May 4, 2005, seven years after entry of the Johnsons' judgment of divorce, Rubin filed a motion to compel defendant to pay $40,830 plus interest within ten days. Rubin also sought counsel fees. In support of his motion, Rubin described his protocol for clients after receiving a court appointment. He related that he introduces himself to each party and then explains his role as a forensic accountant, "the nature of the services that will be performed," and the hourly rate for his work and that of his associates. He also describes his practice of sending the parties a bill once his services have been completed. Rubin stated that he has employed this billing practice to avoid any distractions to the parties. Thereafter, Rubin's associates conduct an interview seeking basic information. Rubin does not participate to reduce the cost to the parties.

Rubin also certified that on March 19, 1997, he interviewed plaintiff and compiled information about defendant's general background and business interests in his interview notes. During this interview, plaintiff's attorney, Irene Mecky, and Rubin's associates, Stuart L. Ruff and Cherie Jones, attended. On April 3, 1997, Rubin interviewed defendant. This time, defendant's attorney, Salvatore A. Simeone; Laurence Cutler, Simeone's partner; Stuart L. Ruff; and Cherie Jones attended.

Rubin detailed defendant's interest in various family businesses. He then requested copies of tax returns for one of the businesses for the last five years (from 1991 to 1996) and a copy of a trust document. Rubin also asked defendant about other transactions and examined the accuracy of his W-2. His interview notes detailed defendant's interests in two additional trusts, as well as defendant's additional businesses.

In his certification, Rubin related his attendance at a five-hour settlement negotiation between the parties at the courthouse with the judge. On October 24, 1997, Rubin spent an additional two hours at a conference with plaintiff and her attorney regarding prior settlement negotiations. He never issued a final report to either litigant, counsel or the court. He attributes the absence to the settlement reached by the parties. He also never issued an interim bill.

Rubin certified that on October 6, 1998, approximately four months after the judgment of divorce, he addressed a statement of services to the parties' attorneys, to be forwarded to the parties. He also sent a bill explaining his and his associates' hourly rates multiplied by their total hours worked. He then attached a separate list describing general tasks performed with no mention about who performed them and the amount of time expended on any task.

Rubin further certified that on December 10, 1998, he sent another letter to the parties through their attorneys. He stated that he sent a bill on October 6, 1998, and briefly related the services rendered, including the total amount of $54,440. He also threatened suit "immediately" if full payment was not received by December 21, 1998. Defendant claims that he never received this letter.

Thereafter, Rubin sent defendant a notice dated November 30, 2003, via certified mail at defendant's office indicating that defendant owed him a past balance due of $41,000. On December 8, 2003, defendant wrote a reply letter to ...


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