On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-892-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Messano.
Plaintiff Michele Orr appeals from the August 26, 2008 order of the Family Part that 1) denied her cross-motion seeking reimbursement of counsel fees pursuant to the provisions of the parties' property settlement agreement (PSA); and 2) denied her request for counsel fees in responding to defendant Sean Orr's motion seeking modification of his child support obligations.
She also appeals from the judge's subsequent order of November 5, 2008 that denied her motion for reconsideration. For the reasons that follow, we reverse and remand the matter for further proceedings consistent with this opinion.
Plaintiff and defendant were divorced on May 18, 2004. The PSA incorporated in the judgment contained the following language regarding "DEBTS":
From the date of this Agreement, neither party shall contract any indebtedness nor incur any liability for which the other party may be held responsible, except as in this Agreement provided. Each party agrees to indemnify and reimburse promptly the other for any sum that he or she may pay by virtue of a violation of this provision.
Each party shall be responsible for any and all debts incurred by that party subsequent to the parties' separation except as set forth herein. Further, each party shall retain any debt associated with any asset to be retained by that party except as set forth herein. . . . Each party indemnifies and holds the other party harmless regarding his/her debts. [(Emphasis added).]
The equitable distribution provisions of the PSA provided that defendant would retain a business, Champion Pools, "a limited partnership" he "acquired . . . during the course of the marriage[,] . . . free from [any] claim of [plaintiff]."
In May 2008, defendant moved for modification of his child support obligations and other relief. In his certification, defendant alleged that as a result of a failed business venture, he was forced to close Champion Pools and declare bankruptcy, from which he was discharged by court order on February 29, 2008. Defendant's motion requested oral argument.
Plaintiff opposed the motion and cross-moved for various relief; she too requested oral argument. In particular, plaintiff sought an order compelling "[d]efendant to reimburse [her] in the approximate amount of $12,000 representing legal fees incurred from 2007 to 2008 when she was forced to defend herself in court as a result of [d]efendant's forging her signature on a personal guaranty of a loan to his business . . . ." In her certification, plaintiff alleged that after defendant filed for bankruptcy in June 2007, she was "sued by Textron Industries (Textron) . . . because [defendant] had forged [her] signature as a guarantor on a loan for $90,000" from Textron to Champion Pools. Attached to the certification were loan documents, apparently executed in 1998, evidencing defendant's loan agreement with Textron, one of which was a personal guarantee purportedly signed by plaintiff. She claimed that this was a forgery and was done by defendant without her knowledge.
Plaintiff alleged that she incurred in excess of $12,000 in legal fees protecting her interests in the bankruptcy proceedings and defending herself in a separate suit Textron filed against her. Plaintiff cited the provisions of the PSA outlined above, and sought reimbursement of her legal expenses, as well as counsel fees incurred in opposing defendant's motion and in furtherance of her cross-motion.
In the written statement of reasons that accompanied the August 26, 2008 order, the judge noted she had decided the applications "on the papers because the parties' submissions [we]re clear . . . and oral argument would not have advanced the Court's understanding of these matters or provided an expeditious resolution of the parties' ...