September 14, 2009
GRACEANN ERCOLANI, PLAINTIFF-APPELLANT,
JOEL M. ERCOLANI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1210-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2009
Before Judges Payne and Waugh.
Plaintiff Graceann Ercolani appeals the denial of her motion for reconsideration of the denial of her application for enforcement of her former husband's obligation to pay her counsel fees in their matrimonial action.
We discern the following from the record. When the parties were divorced, they apparently settled most of the issues between them. However, they were unable to agree on the issue of counsel fees. Consequently, the Family Part entered an order on June 24, 2002, awarding plaintiff $38,750 in counsel fees.
In September 2007, plaintiff sought to enforce that order as part of a cross-motion. At oral argument on November 27, 2007, defendant Joel M. Ercolani, who was then appearing pro se, sought to defend against enforcement of the counsel fee order on the grounds that the obligation had been discharged in bankruptcy. Counsel for plaintiff noted that defendant's assertion was not supported factually, including by documents such as the bankruptcy filing, a listing of creditors and a discharge in bankruptcy, and also cited law to the effect that certain types of financial obligations arising out of the matrimonial relationship are not dischargeable.
The motion judge denied plaintiff's application "without prejudice" because there had been no brief in support of the cross-motion and defendant was pro se. The judge stated that plaintiff could make another application and defendant "will come forward with the proofs." The order embodying the denial "without prejudice" was entered on December 4, 2007.
In April 2008, defendant filed a motion to enforce litigants' rights, raising other issues. On May 8, 2008, plaintiff filed a cross-motion, again seeking to enforce the counsel fee order. That application was denied on the grounds that it was an untimely motion for reconsideration of the December 4, 2007, order, which plaintiff had not appealed. Plaintiff moved for reconsideration, which was denied. This appeal followed.
We remand to the Family Part for a determination of the counsel-fee issue on the merits. The motion judge incorrectly characterized plaintiff's May 2008 cross-motion as a motion for reconsideration. It clearly was not. The transcript of the November 27, 2007, oral argument makes it abundantly clear that plaintiff's application was denied without prejudice to a new motion, at which time defendant was to prove his discharge in bankruptcy and plaintiff was to make her legal arguments that the discharge did not include the counsel fee award. No time limit was put on the bringing of that renewed application, nor was there any obligation on plaintiff's part to appeal an order that denied a motion "without prejudice." Indeed, plaintiff did not even raise the issue again until defendant filed a motion seeking relief from other financial obligations.
We note that the record on the most recent round of motions includes a bankruptcy court discharge and a list of creditors that does not include the intra-spousal debt. In addition, we note that counsel fees have been viewed as support and not dischargeable in bankruptcy. Pelusio v. Pelusio, 130 N.J. Super. 538 (App. Div. 1974). See also In re Brenegan, 123 B.R. 12, 13 (D. Del. 1990); Cashin v. Cashin, 186 N.J. Super. 183, 187 (Ch. Div. 1982) (characterizing counsel fees as support for the purposes of wage garnishment under 15 U.S.C.S. § 1673). However, whether the obligation is dischargeable under the circumstances of this case depends upon the analysis of factors not all of which are now before the court. See Sorah v. Sorah (In re Sorah), 163 F.3d 397 (6th. Cir. 1998). The plaintiff is entitled to a ruling on her application to enforce the counsel fees award on its merits, as to which we express no opinion.
Consequently, we reverse the Family Part's orders and remand for a determination on the merits of the plaintiff's entitlement to enforce the counsel fee award. The parties shall be given the opportunity to file additional papers and for oral argument.
Reversed and remanded.
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