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Johnson v. Howard

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 22, 2008

DAVID TIMOTHY JOHNSON, PLAINTIFF-APPELLANT,
v.
LILLIE LOUELLA HOWARD. DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-2494-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 7, 2008

Before Judges Lihotz and Simonelli.

Plaintiff David Timothy Johnson appeals from the April 29, 2005 order, finding him in violation of litigant's rights for failing to comply with an order entered June 15, 2004, which required him to pay counsel fees and costs. Plaintiff also appeals from the June 10, 2005 order denying his application for a stay of a writ of execution.

The following facts are summarized from plaintiff's voluminous appendix.*fn1 Plaintiff and defendant were involved in a romantic relationship, from which one child, JAJ, was born on January 31, 2001. When their relationship ended, both parties sought custody of the child.

After a lengthy custody hearing, the trial judge entered an order on February 20, 2003, awarding custody of JAJ to defendant and parenting time to plaintiff, and establishing a parenting time schedule. Sometime thereafter, defendant filed a motion for child support.*fn2 The trial judge entered an order requiring plaintiff to pay child support.*fn3 On March 17, 2003, plaintiff filed a motion to decrease child support. By order entered on April 24, 2003, the trial judge denied the motion.*fn4

Plaintiff appealed the February 20, 2003 order. On November 10, 2003, plaintiff filed a motion to compel defendant to provide transcripts and for other relief, which we denied. On February 9, 2004, we dismissed the appeal for failure to prosecute. On March 12, 2004, we denied plaintiff's motion to vacate the dismissal and reinstate the appeal.

On March 25, 2004, defendant filed a motion for counsel fees and costs.*fn5 After concluding that plaintiff acted in bad faith, the trial judge entered an order on June 21, 2004, compelling plaintiff to pay counsel fess and costs of $25,292.34, and reducing that sum to a judgment. The order was recorded as a lien on July 16, 2004. On August 3, 2004, plaintiff filed an appeal, and motion to proceed as an indigent, which we granted, and for free transcripts, which we denied. On November 8, 2004, the trial court denied plaintiff's motion for an abbreviated transcript. On May 3, 2005, we dismissed the appeal for failure to order transcripts.

Defendant obtained a writ of execution and attempted to levy on plaintiff's personal property to satisfy the judgment. However, plaintiff avoided service of the writ. Defendant then filed a motion to enforce litigant's rights, seeking to levy on plaintiff's real estate located in Browns Mills.*fn6 The trial judge found plaintiff in violation of litigant's rights, and entered the April 29, 2005 order permitting defendant to levy on plaintiff's real estate. Plaintiff filed a motion to stay the writ of execution, which the trial judge denied by order entered June 10, 2005.*fn7 On or about June 2, 2005, plaintiff filed the present appeal.

Defendant contends that the trial judge should have granted a stay because the writ was procured by "fraud" and "false premises." This contention is without merit.

The process to enforce a judgment for the payment of money is by writ of execution. R. 4:59-1(a). Execution of a writ shall first be made on the judgment debtor's personal property, and then on his or her real property. N.J.S.A. 2A:17-1. Real property is subject to levy by writ of execution issued on the judgment. N.J.S.A. 2A:17-17.

Defendant has a valid judgment against plaintiff. Defendant obtained the writ to satisfy the judgment. Her attempt to first levy on plaintiff's personal property failed as a result of plaintiff's avoidance of service. Defendant then obtained an order permitting her to levy on plaintiff's real estate. Thus, defendant satisfied the process to satisfy the judgment by writ of execution. No "fraud" or "false premises" occurred here. Accordingly, the trial judge did not err in refusing to grant the stay.

Plaintiff's contention that he was denied a complete record of the proceedings below because transcripts were never delivered to him or the transcriber after his numerous requests, and because defendant did not provide discovery, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). There is no evidence in the record supporting this contention.

We will not address plaintiff's remaining contentions because they do not relate to the April 29, 2005 and June 10, 2005 orders, and because plaintiff has failed to provide transcripts of proceedings other than those relating those orders. Cipala v. Lincoln Technical Inst., 179 N.J. 45, 55 (2004).

Affirmed.


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