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DiSalvatore v. DiSalvatore

February 16, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1010-99.

Per curiam.


Argued January 21, 2010

Before Judges Payne and Miniman.

Appellant, Thomas Forkin, was the attorney for Anthony DiSalvatore in a divorce action that was resolved in October 2000 by the entry of a "consent" judgment of divorce and property settlement agreement (PSA). The PSA was negotiated over a period of two days and was placed on the record before Judge Thomas O'Brien. According to Forkin, he was directed by the court to draft the judgment, and he did so, stating in paragraph 21 that: "The Arbitration award from the Stock Fraud suit filed by the Plaintiff presently being held in the Attorney Trust Account of Fox Rothchild of Philadelphia, shall be awarded to the Plaintiff and recognized that those funds were pre marital and not subject to Equitable Distribution." However, according to Forkin, upon receipt of the order, opposing counsel, Ralph McKay, redrafted the judgment and sent it to the court for execution under the five-day rule. Forkin claims that he was not copied by McKay. Crucially, it appears that in McKay's order, the arbitration award was equitably distributed fifty/fifty. Thereafter, the arbitration award of $14,000 was forwarded to Forkin, who disbursed one-half to his client and kept the other half in payment of counsel fees.

In the Spring of 2001, McKay filed a motion seeking equitable distribution of the arbitration award. His motion was granted, and an order was entered in May 2001 that directed "Plaintiff Anthony DiSalvatore and/or Thomas Forkin" to pay defendant Doreen DiSalvatore her equitable share. The order also required the two to appear for depositions and held open the right to file for emergent relief if turn-over did not take place. Forkin, who was suffering from clinical depression and substance abuse problems and appears to have been serving a one-year suspension from practice that concluded on July 24, 2002, did not oppose the motion.

In 2005, an ethics complaint was filed against Forkin arising out of this matter, and he was disbarred on February 21, 2006. In 2009, Forkin moved pro se to set aside the "consent order" as fraudulent. The motion was denied. In written findings, the motion judge held:

The Court is satisfied that under R. 4:26-1, Thomas Forkin has no standing to re-open the above captioned divorce matter. He is not a real party in interest in the matrimonial matter, and he no longer serves as a representative for either party, as he was disbarred from the practice of law. Standing is an essential element of justiciability, neither subject to waiver nor conferrable by consent. In re Baby T., 160 N.J. 332, 341 (1999).

Forkin has appealed.

In In re Baby T., the Supreme Court stated:

Standing "refers to the plaintiff's ability or entitlement to maintain an action before the court." New Jersey Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13 (1997), and appeal dismissed as moot, 152 N.J. 361 (1998). Entitlement to sue requires a sufficient stake and real adverseness with respect to the subject matter of the litigation. Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971). A substantial likelihood of some harm visited upon the plaintiff in the event of an unfavorable decision is needed for the purposes of standing. Home Builders League of South Jersey, Inc. v. Berlin Tp., 81 N.J. 127, 134-135 (1979); So. Burlington Cty. NAACP v. Mt. Laurel Tp., 67 N.J. 151, 159, n.3 (1975), App. dism. 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed. 2d 28 (1975). New Jersey State Chamber of Commerce [v. N.J. Election Law Enforcement Comm'n], 82 N.J. [57,] 67 [(1980)]. A lack of standing by a plaintiff precludes a court from entertaining any of the substantive issues presented for determination. Watkins v. Resorts Int'l Hotel and Casino, 124 N.J. 398, 424 (1991); Crescent Park, supra, 58 N.J. at 107. [In re Baby T., supra, 160 N.J. at 340.]

In the Baby T. case, an anaestheologist who had been sued for medical malpractice by the adoptive parents of the child following the child's death, sought to challenge a posthumously-entered judgment of adoption, thereby undercutting the parents' position as next-of-kin. The Court held that the anaestheologist lacked standing to mount a collateral attack on the judgment, since she was neither a party nor a legal representative of a party to the final judgment of adoption. Id. at 341.

We find Baby T. to be distinguishable. Forkin clearly was not a party to the DiSalvatore's divorce. However, as counsel to Anthony DiSalvatore, he had come into possession of the proceeds of the arbitration and had distributed them in accordance with what he allegedly believed were the terms of the PSA. As a consequence of his actions, the court deemed Forkin to be jointly liable with his client for payment of Doreen DiSalvatore's equitable share of the arbitration award as specified in the PSA drafted by McKay and signed by Judge O'Brien. That joint liability gave Forkin a stake in the divorce proceedings and real adverseness to Doreen DiSalvatore in connection with the disposition of the arbitration award and the framing of the PSA. We find that stake to be sufficient to confer standing upon Forkin in connection with the present application.

We note, however, that Forkin is seeking to vacate one aspect of a judgment pursuant to Rule 4:50-1. At oral argument, we queried him as to whether he could meet the rule's requirements. However, since Forkin's appeal challenged only the court's determination of the standing issue, he was not fully prepared to address the subject. We ...

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