April 7, 2009
RAY HUGHES CORDIER, JR., PLAINTIFF-RESPONDENT,
NANCY C. DAY-CORDIER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Burlington County, Docket No. FM-03-360-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2009
Before Judges Cuff and Baxter.
In this post-judgment matrimonial matter, we review a March 7, 2008 order that suspended defendant Nancy Day-Cordier's right to receive alimony for a three-week period; required her to pay counsel fees that plaintiff, Ray Hughes Cordier, Jr., incurred in defending a foreclosure action against the former marital home; required her to pay plaintiff's counsel fees for an earlier motion plaintiff had filed; and required her to supply plaintiff with detailed financial records. We affirm in part, reverse in part, and remand.
The parties were divorced on February 2, 2007. Their judgment of divorce (JOD) provided, in relevant part: 1) in return for a payment from plaintiff in the amount of $100,000, defendant relinquished her interest in the former marital home; 2) plaintiff would refinance the underlying mortgage to ensure that defendant was no longer listed as responsible for payment of that mortgage; 3) defendant warranted that other than the mortgage, she had not caused any liens, judgments or encumbrances to be lodged against the former marital home, but in the event any encumbrances were found to exist, she agreed to satisfy such encumbrances from the $100,000 she received from plaintiff; and 4) plaintiff was required to pay defendant $425 per week as term alimony for a period of four years, commencing on the date that she vacated the former marital home.
On November 5, 2007, plaintiff filed a motion to enforce litigant's rights, which was postponed on two occasions at defendant's request, and was decided, without any opposition being filed by defendant, on January 11, 2008. In support of his November 5, 2007 motion for enforcement of litigant's rights, plaintiff asserted that Velocity Investments, L.L.C. (Velocity) had placed a lien of $16,221.62 on the marital home by reason of defendant's failure to satisfy her credit card debt. He also alleged that the Internal Revenue Service (IRS) had imposed a lien of $4,684.90 on the marital home due to defendant's unpaid tax obligations. He sought an order suspending his obligation to pay alimony until defendant satisfied the encumbrances, as well as an accounting of how defendant spent the $100,000 she received from the divorce settlement. Finally, he sought counsel fees for defending the foreclosure action that was instituted against the former marital home by defendant's judgment creditor, Velocity, and he sought counsel fees for his November 5, 2007 motion.
In relevant part, the January 11, 2008 order suspended plaintiff's obligation to pay term alimony to defendant until she provided a written list of all her creditors and the payments she made on those debts, as well as proof of employment. She was also ordered to provide a full accounting of how she spent the $100,000 she received from plaintiff, including canceled checks, bank account statements, and creditor statements. The judge also ordered defendant to provide proof that she had satisfied all tax liabilities, the Velocity debt, and any other debts she had incurred. Last, the judge awarded plaintiff counsel fees of $1,527.13 in connection with his November 5, 2007 motion.
On February 1, 2008, defendant filed a motion for reconsideration in which she sought an order: requiring plaintiff to resume the payment of alimony and reimburse her for the alimony that had previously been suspended; vacating the portion of the January 11, 2008 order that required her to pay plaintiff's counsel fees in connection with the foreclosure action; and eliminating her obligation to pay plaintiff's counsel fees for the November 5, 2007 motion.
In her certification supporting her motion for reconsideration, defendant asserted that she had not filed any opposition to plaintiff's November 5, 2007 motion because he had assured her that if she satisfied the encumbrances on the marital home, he would withdraw his motion. She further asserted that she had indeed satisfied those encumbrances, and had provided proof to plaintiff that she had done so, but he had unexpectedly reneged on his promise to withdraw the motion. She maintained that not until she was served with a copy of the court's January 11, 2008 order, did she realize that plaintiff had not withdrawn his November 2007 motion.
In support of her reconsideration motion, defendant attached proof that she satisfied the $16,221.62 debt to Velocity on December 5, 2007. She also provided documentary proof that she paid the IRS debt in full on January 10, 2008.*fn1
Plaintiff filed a cross-motion in which he sought an order requiring defendant to pay the previously-ordered counsel fees of $1,527.13, to provide the previously-ordered accounting, and supply a statement listing all of her creditors and debts.
The two motions were heard on March 7, 2008. In her March 7, 2008 order, the judge specifically found that "[d]efendant has substantially complied with the court's order of January 11, 2008, such that the liens on the marital property have been removed." Despite that finding, the judge persisted in requiring plaintiff to supply an accounting of canceled checks paid to her creditors as well as an accounting of the $100,000 she received from the JOD; however, the judge modified her November 5, 2007 order by relieving defendant of any obligation to account for "those debts that are entirely unrelated to plaintiff."
On appeal, defendant argues that the order of March 7, 2008 was onerous, intrusive and unjustified. We agree. Other than the IRS and Velocity debts, plaintiff pointed to no other creditors who had in any way interfered with, or had the potential to interfere with, his clear title to the marital home. In fact, his November 5, 2007 motion simply asserted, "I do not know if and when any further creditors might emerge." Defendant certified in support of her motion for reconsideration that she had been assured that plaintiff would withdraw his November 2007 motion if she provided proof that she satisfied the two creditors in question. Plaintiff did not deny that assertion. In light of defendant's proofs establishing that she had indeed notified plaintiff that she satisfied the two encumbrances, and that he nonetheless failed to withdraw his motion, the court should have desisted from ordering the intrusive accounting that we have described. This was especially so in light of plaintiff's failure to identify any creditors other than Velocity and the IRS to whom defendant owed money.
Once defendant satisfied those two obligations, and plaintiff failed to demonstrate that there were any more creditors lurking, the judge's refusal to reconsider her November 5, 2007 order requiring the accounting was an abuse of discretion. Consequently, we vacate that portion of the March 8, 2008 order.*fn2
We next turn to the suspension of the term alimony. In her March 8, 2008 order, the judge ordered the resumption of plaintiff's alimony obligation, yet she insisted that plaintiff's alimony obligation should remain suspended between January 11, 2008 and February 1, 2008, which is when defendant filed her reconsideration motion. In light of the judge's finding that defendant satisfied the two encumbrances, and had indeed satisfied them before the January 11, 2008 return date of the November 2007 motion, the judge erred when she refused to vacate the alimony suspension. Therefore, we need not address the question of whether such action was warranted in the first place. We merely decide that because defendant satisfied the two encumbrances before the January 11, 2008 return date, the judge erred on March 8, 2008 when she denied defendant's motion to require plaintiff to repay all of the previously-suspended alimony. We thus reverse that denial and remand the matter for the entry of an order requiring plaintiff to reimburse defendant for those three weeks of alimony. On remand, the judge shall set an appropriate deadline for the payment of that $1,275.
Finally, we turn to defendant's claims respecting the judge's refusal to reconsider her January 11, 2008 order requiring defendant to pay plaintiff's counsel fees in connection with the November 2007 motion for enforcement of litigant's rights as well as his counsel fees in connection with the foreclosure action. The record demonstrates that defendant did not satisfy either of the two encumbrances until after plaintiff filed his motion for enforcement of litigant's rights in November 2007. Under those circumstances, we have been provided with no meritorious basis upon which to disturb the judge's refusal to reconsider her January 11, 2008 order requiring defendant to pay plaintiff's counsel fees in connection with the filing of his November 2007 motion.
However, as we have discussed, defendant should have withdrawn the motion on January 10, 2008 when he learned that defendant had satisfied both encumbrances. Thus, the award of counsel fees was proper for the preparation and filing of the motion, but not for argument of the motion on January 11, 2008. On remand, the judge is directed to vacate the portion of the counsel fee award that pertained to argument on January 11, 2008.
We are also satisfied that the judge correctly determined that defendant should be responsible for reimbursing plaintiff for any counsel fees he incurred in connection with the foreclosure action on the marital home that was instituted as a result of defendant's failure to satisfy the encumbrances in question. However, Rule 5:3-5(c) also requires an assessment of the parties' relative ability to pay before a counsel fee award is made. The judge made no such findings. Consequently, we remand for reconsideration of the counsel fees that were ordered on January 11, 2008 so that the judge may evaluate the parties' financial status as it bears upon the order requiring defendant to pay plaintiff's counsel's fees for the November 5, 2007 motion and for the foreclosure action. We intimate no view on how that question should be resolved.
On remand, the judge should also reconsider the portion of the March 8, 2008 order that denied defendant's motion for counsel fees. Such reconsideration is warranted in light of our conclusion that the accounting ordered by the judge, and the three-week suspension of alimony contained in the March 8, 2008, order, were mistaken exercises of the judge's discretion.
To reiterate, we reverse those portions of the March 8, 2008 order that required defendant to submit a listing of her creditors and an accounting of how she spent the $100,000 she received from the JOD. We also reverse the portion of that same order that suspended plaintiff's obligation to pay alimony for a period of three weeks, and direct the judge to set a date for repayment. Last, we remand for reconsideration of the January 11, 2008 counsel fee award in plaintiff's favor as well as the denial of defendant's motion for payment of her counsel fees.
Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.