On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-284-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2009
Before Judges Carchman, Parrillo and Lihotz.
Plaintiff Joseph Danon appeals from two orders of the Family Part ordering him to pay an outstanding bill due and owing to defendant Bethe Danon's forensic expert Kalman Barson as well as counsel fees related to the motions to compel such payment. While we conclude that plaintiff is responsible for the balance of expert fees and further that he may be responsible for counsel fees, we reverse and remand to the motion judge for further hearing and findings on the issues in dispute.
This was a contentious divorce marked by an overabundance of motions followed by innumerable motions for reconsideration. During the pendency of the resolution of the issues that are the subject of this appeal, the first motion judge recused himself from further involvement in the litigation and then retired from the bench.*fn1 The succeeding motion judge made certain assumptions regarding the former judge's findings. Those assumptions provide the underpinnings of this appeal. In this regard, we present a short summary of the facts relevant to the issues before us.
Plaintiff and defendant were divorced pursuant to an April 25, 2007 judgment. This judgment was later modified by an Amended Judgment of Divorce (AJOD), memorialized by the court on July 30, 2007. The AJOD incorporated the parties' Property Settlement Agreement (PSA).
Pursuant to the AJOD, the parties agreed that they would equally divide the net proceeds of the sale of a piece of commercial property "subject to credit that may be related to other issues in this matter."*fn2 This commercial property had been sold for $715,000. After certain monies were distributed for professional fees and child-care related costs, the remaining amount, held in escrow, amounted to approximately $109,000.00.
A toy collection was disposed of with plaintiff retaining title and interest in the toys, and defendant receiving $100,000, to be paid in three installments of $33,333; the first to be paid on April 6, 2006, the second one year after that and the third one year after that.*fn3 Plaintiff did not pay any monies on account of this obligation asserting that payment would be made "after the issues of alimony and professional fees [were] resolved by agreement or court order."
In addition to making specific allocations of monies, the AJOD also documented the parties' agreements regarding timing and method of resolving the issue of professional and experts' fees. Plaintiff and defendant agreed that they would submit the determinations regarding such issues to the court.
The PSA further stated "that there [were] no other marital debts related to equitable distribution other than as specifically set forth in this agreement for which the other party may be or is liable thereon."
On August 28, 2007, defendant moved to enforce the PSA specifically seeking a release of all the escrowed funds from the sale of the commercial property. Defendant, in addition, sought $66,666.00 as payment in satisfaction of the two missed installment payments in regard to the toy collection and other relief. Defendant also submitted an application for attorneys' fees related to her "efforts to enforce the Agreement in this application." Defendant acknowledged that the divorce was essentially settled on April 23, 2007, but because of plaintiff's "acts of bad faith" and his "refusal to effectuate" the PSA, she was forced to incur additional attorneys' fees. By cross-motion, plaintiff challenged defendant and claimed certain credits.
The first motion judge did make determinations concerning fees owed to defendant's expert, Barson. Specifically, the judge directed plaintiff to pay the balance of fees owed to Barson, as plaintiff "was in a better position financially, with the disparate income, to pay that, and clearly that was good faith and that was warranted." While ordering that plaintiff was required to pay the balance of Barson's fees, the judge did not state the exact amount plaintiff was required to pay. He estimated the amount to be approximately $22,000 but declined to enter an order regarding the exact amount pending receipt of Barson's invoice. An order was entered on November 2, 2007, later amended on November 26, 2007, including among other provisions, plaintiff's obligation to pay the expert fees.
Plaintiff filed a notice of motion to correct the November 26, 2007 order. However, prior to the date of scheduled argument on the motion, the motion judge retired, ...