December 10, 2008
JANET SCIORRA, PLAINTIFF-RESPONDENT,
GLENN B. SLATER, DEFENDANT-APPELLANT, AND MARY TOM, COURT-APPOINTED RECEIVER FOR GLENN B. SLATER, RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2852-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 5, 2008
Before Judges Sapp-Peterson and Baxter.
Defendant appeals from the July 20, 2007 order entered by the Family Part: (1) approving the contract for sale of property owned by defendant; (2) requiring defendant's removal from the property; (3) awarding counsel fees to the receiver, Mary Tom (Tom), Esq.; and (4) specifying measures to enforce provisions of the order. We affirm.
The order arises out of a palimony action commenced against Slater by his former paramour, plaintiff Janet Sciorra. Sciorra claimed that in 1985, she and Slater "mutually agreed to cohabit with the intent to conduct and maintain their personal and financial lives in a family-type shared-living arrangement" and continued this relationship, during which they held themselves out as husband and wife and conducted all of their affairs under the guise of this shared relationship, for the next thirteen years.
In 2003, Sciorra filed a verified complaint for palimony, distribution of assets, partition, and other equitable relief against defendant. The matter was venued in Passaic County. Following the completion of discovery, the matter proceeded to trial before Judge John E. Selser. On June 4, 2004, the judge entered judgment in favor of plaintiff, which included a palimony award of $266,800. Defendant never appealed from the entry of this judgment.
Plaintiff thereafter attempted to collect the judgment and obtained several levies against defendant and also instituted enforcement proceedings. Because defendant did not cooperate, the court entered an order on April 3, 2006 appointing Tom as a receiver on behalf of defendant. The order directed Tom to "marshal together and sequester all assets, property and businesses of [defendant] to pay the amounts previously ordered by this court." The order also provided that Tom's fees as receiver "shall be paid from the assets of [defendant] so marshaled and sequestered by Ms. Tom, on further application to the court."
On October 6, 2006, the receiver filed a motion seeking an order transferring title to property owned by defendant, located at 355-359 Warwick Turnpike in Hewitt (the property), for the purpose of allowing the sale of the property. Defendant opposed the motion and also cross-moved to overturn all prior orders entered by the court. On December 6, 2006, the court entered an order approving the transfer of title to the property to Tom and also awarding counsel fees and costs to Tom. Defendant's cross-motion was denied in its entirety.
Thereafter, Tom filed a motion returnable May 25, 2007 seeking (1) court approval of the contract for the sale of the property free and clear of liens so that good title could be transferred to the purchasers, (2) the removal of defendant from the property, and (3) an award of counsel fees and costs to the receiver. Defendant filed opposition to the motion. On June 8, 2007, the court, sua sponte, transferred the matter to Bergen County after defendant filed a tort claims notice against various Passaic County judges. Prior to oral argument on the motion, defendant filed a second cross-motion seeking a stay of all proceedings pending the Attorney General's investigation into the allegations raised in his tort claims notice. The court denied this relief, and oral argument was conducted on July 20, 2007.
At oral argument, Tom advised the court that there was a contract for sale of the property at its appraised value, but the sale was conditioned upon court approval and defendant's removal from the property. Tom also represented to the court that there were outstanding judgments against the property that exceeded the sale price for the property. She requested that the court permit her to place the proceeds from the sale of the property into her trust account and that she would thereafter "determine the priority of the creditors, come back to this court, and we'll distribute once we figure out how much money we actually have so that the buyers can get clear title to the property."
Defendant appeared pro se and essentially presented the history of his relationship with plaintiff that he believed was relevant to the events leading up to the commencement of the palimony action. He argued that he was entitled to a credit against the judgment for the $1,200 weekly receipts plaintiff received from the operation of their motel business. He also argued that the "palimony [judgment] was controlled by Chapter 4 of the [bankruptcy code]." He claimed the palimony action was barred by the statute of limitations. Finally, defendant urged that plaintiff had unclean hands.
The court entered its decision orally from the bench immediately following oral argument. The court stated:
Ms. Tom is now coming before the Court for that approval which was delineated in [Judge] Selser's order of December 6th. That's the sole application before this Court. Mr. Slater opposes the approval of the sale for reasons -- many, many reasons having to do with the history of this matter in bankruptcy court, in Passaic County prior to December of 2006, when Judge Selser ordered the property sold.
Though the prior history of this matter is not before this Court, if there had been, as Ms. Tom points out, dissatisfaction on the part of Mr. Slater with any of the prior Court decision, his remedy would be to go to the appellate court, not to come before me at the 11th hour and block the sale of the property. . . . I'm just indicating that I do not have the authority to overturn a trial court judge. Only the [A]ppellate [D]ivision can do that. And, therefore, I'm not considering what would in any event be his one[-]sided perception of the prior proceedings since the other party is not before me.
Ms. Tom has very well substantiated her request and appropriately so, and cited to the proper authority. Her fees are reasonable, her hourly fee, I believe, is $250 an hour. She has set forth a certification of services that are not objected to by Mr. Slater in any specific way and seem completely reasonable to me. There was significant legal work involved in this matter. It is appropriate that her fees be taken out of the sale of the property prior to paying off the debtors, which is what she's requesting.
I approve the contract for sale. Ms. Tom determined the fair market value through an appraiser. She even had that appraisal updated in April of 2007. That is responsible. That is appropriate.
And, the price that the buyer[s] are paying is the value of that property exactly. She's authorized to sell the property, free and clear of any lien or judgment, in order to provide good title to the buyers. Otherwise, the buyers are not going to buy property without good title. The lien shall attach to the net proceeds realized from the sale, so that the creditors may be satisfied or as completely satisfied as is possible.
Mr. Slater shall remove himself from the property within 30 days of the entry of this order. . . . If he fails to vacate the premises within 30 days, the receiver is authorized to remove him from the property with the assistance of the police department.
On appeal, defendant contends: (1) there was accord and satisfaction with respect to the palimony judgment; (2) plaintiff and her attorney perpetrated a fraud upon the court by submitting false certifications designed to bring plaintiff's palimony action within the statute of limitations; (3) plaintiff used a partnership agreement to gain control of the business property; and (4) the court never "acknowledged the partnership agreement or the ramifications that would ensue due to plaintiff's lack of any concern for the business except to suck it dry."
We have carefully considered defendant's arguments challenging the court's decision ordering the sale of the property, his removal from the property, and the payment of counsel fees and costs to the receiver, in light of the record and applicable law. We conclude that defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons expressed by Judge Ellen Koblitz in her oral decision of July 20, 2007. We add the following brief comments with respect to defendant's contention that the palimony judgment was satisfied through the court's ruling in connection with the Clinton Motel.
Plaintiff's verified complaint not only sought palimony but, in the second count, plaintiff alleged breach of defendant's fiduciary duty in connection with a "non-marital partnership and/or joint venture[.]" One of the partnership's assets was the Clinton Motel. Judge Selser found that the Clinton Motel, although purchased in defendant's name in 1980, before the parties entered into a palimony relationship, was nonetheless an asset of the parties' partnership that was subject to equitable distribution. Thus, the Clinton Motel property was separately considered by the court in the context of the parties' partnership agreement and not as an asset available for consideration in determining an appropriate alimony award.
Judge Selser noted that during the trial, plaintiff testified that she and defendant entered into a partnership agreement that called for plaintiff to obtain a fifty percent interest in the Clinton Motel upon the payment of $150,000, which she began to satisfy with a $40,000 down payment and monthly payments thereafter for the next seven months of $1,061.54. She explained that she ceased making these payments when defendant approached her about his need to use the Clinton Motel as collateral for another business enterprise. In consideration for plaintiff's agreement to allow defendant to use the property as collateral for his business venture, defendant agreed that plaintiff would no longer be required to make any payments towards the balance due on the $150,000.
In Judge Selser's June 4, 2004 written statement of reasons attached to the order of judgment, he specifically noted that defendant did not dispute any of plaintiff's testimony related to the partnership agreement. The judge also referenced a hearing that took place in federal bankruptcy court during which defendant represented to the court that with respect to the Clinton Motel, he "'[a]t one point . . . had an agreement with [plaintiff] where she was going to buy in for 50%.'" Based upon plaintiff's unrebutted testimony and the transcript from the bankruptcy court, Judge Selser found that plaintiff "is a 50% owner of the real estate located at 1899 Clinton Road, Hewitt, New Jersey." The court ordered the sale of the property and that the net proceeds be divided equally between the parties. Thus, despite defendant's arguments before Judge Koblitz that the palimony judgment was satisfied by virtue of plaintiff's interest in the Clinton Motel, Judge Selser's ruling reflected otherwise. Because defendant never appealed Judge Selser's decision, Judge Koblitz properly declined to revisit this issue.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.
Judge Koblitz' finding that Tom "has very well substantiated her request" is supported by substantial credible evidence in the record. Defendant, in his opposition to the relief sought, did not dispute that Judge Selser appointed Tom as receiver. Nor did he dispute that the court had ordered the sale of the property and his removal from the premises. The court also found that Tom submitted a certification of services and that defendant did not object "in any specific way" to the fees sought. The court found that both the services and hourly fee were reasonable. We are satisfied that Judge Koblitz' findings are well supported by substantial credible evidence in the record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), and do not reflect either legal error or abuse of discretion.
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