August 3, 2010
LUCIA EJIOFOR, PLAINTIFF-APPELLANT,
CARLOS EJIOFOR, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Family Part, Burlington County, Docket No. FM-03-1513-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2010
Before Judges Fuentes, Gilroy and Simonelli.
Plaintiff Lucia Ejiofor appeals from the July 27, 2007,*fn1 October 1, 2008, December 3, 2008, and February 6, 2009 post-judgment of divorce (JOD) orders. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
The parties married on May 27, 1989, and separated December 15, 2004. Three children were born of the marriage in 1991, 1996, and 1997. On June 21, 2005, plaintiff filed a complaint for divorce. Defendant counterclaimed. While separated, the parties entered into a marital settlement agreement (MSA) addressing the issues of marital support, equitable distribution, child custody and parenting time. On March 15, 2007, the court granted the divorce, with the parties placing the terms of the MSA upon the record. On April 12, 2007, the court entered a dual JOD nunc pro tunc to March 15, 2007. The JOD incorporated the provisions of the MSA.
At time of the divorce, the parties owned several properties: a tract of property in Lagos, Nigeria; a marital home in Imo State, Nigeria; an apartment unit in Newark; four tracts of real property in North Carolina; a marital residence in Burlington Township; and interests in two timeshare units. According to the MSA, plaintiff agreed to pay defendant $97,000 as equitable distribution ($50,000 by April 14, 2007, and $47,000 by June 13, 2007). Plaintiff agreed that if she failed to timely make payments, she would execute a quitclaim deed to the Newark apartment in favor of defendant. Likewise, defendant agreed that if plaintiff made the payments when due, he would, in turn, execute a quitclaim deed to the Newark apartment in favor of plaintiff.
The parties agreed to divide the four North Carolina properties by drawing lots out of a hat. The MSA provided that: "From time of picking property, each party is responsible for all the financial obligations on the property, including the mortgage, utilities and any other costs. Within 90 days of 3/15/07[,] namely 6/13/07[,] the parties must refinance their picked properties, if not the property goes to the other party." Defendant also agreed to transfer title of the Lagos, Nigeria property to plaintiff on or before April 14, 2007, with plaintiff agreeing not to record the deed until total payment of the $97,000 equitable distribution was made by her. Plaintiff agreed that defendant would retain ownership of the marital home in Imo State, Nigeria. As to the marital residence in Burlington Township, defendant agreed to execute a deed in favor of plaintiff, and plaintiff agreed to refinance the property by June 13, 2007.
Lastly, as to their bank accounts, the parties agreed to marshall all funds from the accounts, total them, and then equally divide the funds between themselves. The parties agreed to complete the distribution of funds no later than June 13, 2007.
On June 15, 2007, defendant filed a motion seeking an order compelling plaintiff to pay him $47,000, his remaining share of equitable distribution, or alternately, compelling plaintiff to execute a deed relinquishing her interest in the Newark apartment. If plaintiff paid the $47,000, defendant sought an order compelling her to refinance within ten days the Newark apartment, the Burlington Township marital residence and the two North Carolina properties plaintiff selected, thus removing defendant from any further obligations on those properties.
Plaintiff filed a cross-motion requesting, among other things, an order: 1) granting her a credit against the amount owed defendant for equitable distribution in the amount of $27,448.83, contending that defendant had concealed a monetary liability against the Lagos, Nigeria property; 2) granting her a credit of $5,406.79 against the amount owed for equitable distribution, asserting that she had paid a joint debt owed on one of the two North Carolina properties defendant selected to save the property from foreclosure; 3) compelling defendant to refinance his two North Carolina properties removing her from any further obligations on them; and 4) compelling defendant to disclose all bank accounts, personally held or jointly held with any third parties in the United States or Nigeria.
On July 27, 2007, the trial court, after determining that neither party had fully complied with the provisions of the JOD, entered an order, supported by an oral decision, directing in part that: 1) plaintiff transfer $47,000 to defendant's attorney's trust account by August 20, 2007, and that the failure to do so would result in plaintiff's waiver of her interest in the Newark apartment; 2) each party bear the debts related to the respective properties each had received through the JOD; and 3) the parties refinance the properties on which their former spouse's name appeared of record, and the failure to do so would be deemed a waiver of the defaulting party's interest in the property. The order also: denied without prejudice that part of plaintiff's motion seeking to reduce the $47,000 equitable distribution owed to defendant by $27,448.83, but granted the parties leave to file cross-motions within ninety days of entry of the order to address plaintiff's claim; and denied without prejudice plaintiff's claim seeking a reduction of monies owed to defendant for equitable distribution by $5,406.79.
The court stated that to the extent the $5,406.79 payment represented a debt the parties had incurred through the date of allocation of the North Carolina properties, plaintiff was not entitled to a credit. If the payment was made for a debt incurred after allocation, then plaintiff would be entitled to a credit. Because the court did not have sufficient information to determine the reason for the payment, it denied the motion, but granted the parties leave to file a motion within ninety days of entry of the order to resolve the issue.
On August 27, 2007, the parties entered into a consent order extending the date to refinance the properties from August 20, 2007, to October 19, 2007. On October 29, 2007, plaintiff filed a motion seeking to compel defendant to either refinance or sell one of the two North Carolina properties previously allocated to him; seeking a $27,448.83 credit against monies plaintiff owed defendant for equitable distribution, together with other credits in lesser amounts; and seeking to compel defendant's attorney to release the $47,000 held in escrow to plaintiff's attorney.
On November 26, 2007, defendant filed a cross-motion seeking an order directing plaintiff to execute a deed of her interest in her two North Carolina properties and in the Burlington Township marital residence for failure to refinance the properties as previously ordered by the court. Following a failed mediation, the court scheduled a plenary hearing on the cross-motions for June 19, 2008. However, in lieu of testimony, the parties submitted briefs. On September 30, 2008, the court issued a twelve-page written opinion that, in part, directed:
1) plaintiff make all payments necessary to take title to the Lagos, Nigeria property; 2) the parties to equally share all expenses pertaining to the two timeshare units; 3) a law firm in North Carolina disburse from its trust account $7,124.97 to plaintiff, and $2,033.78 to defendant; 4) plaintiff to refinance the Burlington Township marital residence, with defendant executing any required documents to effectuate such refinance; 5) defendant pay plaintiff $12,929 as his 50% share of sheltering expenses incurred by plaintiff from December 12, 2004 to June 21, 2005; 6) plaintiff pay defendant $6,887.09 as his 50% share of all bank accounts jointly held during the term of the marriage; and 7) payments be made between the parties for various other claims asserted in their cross-motions. On October 21, 2008, the court entered a confirming order.
On October 29, 2008, plaintiff filed a motion seeking to amend the October 21, 2008 order, including the provision that denied her motion seeking forfeiture of defendant's interests in any properties defendant had failed to either refinance or sell as previously directed by the JOD and orders of July 27, 2007, and August 27, 2007. On November 26, 2008, defendant filed a cross-motion to enforce litigant's rights, seeking an order to compel plaintiff's compliance the terms of the October 21, 2008 order and to pay counsel fees and costs. On December 3, 2008, treating plaintiff's motion as a motion for reconsideration under Rule 4:49-2, the court entered an order denying plaintiff's motion for failing to meet the applicable rule standard. The court granted defendant's motion and directed plaintiff to pay defendant $2,000 in counsel fees and costs. On December 22, 2008, plaintiff filed a Notice of Appeal (NOA) from the July 27, 2007, October 21, 2008 and December 3, 2008 orders. On January 2, 2009, plaintiff filed a motion in the Family Part seeking a stay of the October 21 and December 3, 2008 orders; defendant filed a cross-motion on January 20, 2009, to compel plaintiff to pay additional counsel fees and costs. On February 6, 2009, the court entered an order denying plaintiff's motion and granting defendant's motion, directing plaintiff to pay an additional $750 in counsel fees and costs. Plaintiff filed an amended NOA on March 10, 2009, to include an appeal from the court's last order.
Our review of a trial court's factual findings is limited to determining whether those findings are supported by sufficient, credible evidence, they will not be disturbed. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We give particular deference to the Family Part because of its expertise in matrimonial matters. Id. at 412. Nonetheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, plaintiff argues:
PLAINTIFF SUFFERED MANIFEST WRONG OR INJURY FROM A WRONG INTERPRETATION OF THE LAW AND LEGAL CONSEQUENCES THAT FLOWED FROM ESTABLISHED FACTS CONCERNING PARTIES' MARITAL DEBTS.
RESULT REACHED BY THE TRIAL JUDGE ON THE EVIDENCE IS CLEARLY UNFAIR OR UNJUSTLY DISTORTED BY A MISCONCEPTION OF LAW OR FINDINGS CONTRARY TO THE EVIDENCE ON PARTIES' BANK ACCOUNTS.
DECISION OF THE TRIAL JUDGE DIRECTING PAYMENT OF THE BALANCE OF $2[,]033.78 TO DEFENDANT IN RESPECT OF THE NORTH CAROLINA PROPERTY CONTRARY TO THREE SUBSISTING ORDERS OF THE COURT IS CLEARLY UNFAIR OR UNJUSTLY DISTORTED BY A MISCONCEPTION OF LAW OR FINDINGS CONTRARY TO THE EVIDENCE.
ORDER DIRECTING PLAINTIFF TO REFINANCE PARTIES' FORMER MARITAL RESIDENCE WITHIN 30 DAYS OF OCTOBER 21, 2008[,] IS MANIFESTLY WRONG AND UNJUST.
A COURT OF COORDINATE JURISDICTION MAY NOT SIT AS AN APPELLATE COURT OVER ANOTHER.
THE LOWER COURT FAILED TO PROPERLY EVALUATE THE EVIDENCE SUBMITTED BY THE PARTIES TO DETERMINE THE CORRECT AMOUNT DUE TO PLAINTIFF AS HOUSEHOLD EXPENSES [--] 1999 GMC SONOMA CAR.
DENIAL OF PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES AND AWARD OF SAME AGAINST PLAINTIFF IS MANIFESTLY WRONG AND UNJUST.
A. AWARD OF ATTORNEY'S FEES AGAINST PLAINTIFF SHOULD BE REVERSED
Initially, we question the timeliness of plaintiff's appeal from the July 27, 2010 order. Rule 2:4-1(a) requires that appeals from final orders or judgments "be taken within 45 days of their entry." We acknowledge that the July 27, 2010 contained several provisions which on their face rendered the order interlocutory, that is, paragraphs 10 and 11 granted the parties leave to file motions to address plaintiff's claims for credits of $27,448.83 and $5,406.79 against monies owed by her to defendant for equitable distribution of the marital assets. However, those provisions required that such motions be filed within ninety days of entry of the order. Although the order was not filed until August 1, 2007, it was entered by the trial court on July 27, 2007. Accordingly, any motions addressing plaintiff's claim that credits be applied against monies owed for equitable distribution were required to be filed no later than October 25, 2007. Plaintiff did not file her motion until October 29, 2007, four days after the July 27, 2007 order became final by its own terms. With that said, however, it does not appear that defendant or the trial court raised the issue when plaintiff filed her motion. Indeed, defendant filed a cross-motion. Accordingly, we choose to address plaintiff's claims on the merits, rather than dismiss the appeal from the July 27, 2007 order on procedural grounds.
We have considered plaintiff's arguments in light of the record and applicable law. We are satisfied that none of them, other than the argument set forth in Point VII-A, are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm on all issues other than the issue in Point VII-A substantially for the reasons expressed by the trial court in the court's oral opinion of August 27, 2007, its written opinion of September 30, 2008, and in the stated reasons contained in the orders appealed from. However, plaintiff's argument in VII-A of her brief has merit.
Plaintiff argues in Point VII-A that the court erred in ordering her to pay defendant $2,000 in counsel fees under the December 3, 2008 order, and an additional $750 under the February 6, 2009 order. Plaintiff contends that the trial court failed to express any reasons in support of the counsel fee awards. We agree.
An award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). Such exercise of discretion will not be disturbed in the absence of showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). "Discretion, however, means legal discretion, 'in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)).
When reviewing an application for counsel fees, a court must "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. In a family action, Rule 4:42-9(a)(1) authorizes the award of counsel fees and refers to Rule 5:3-5(c), which provides that a court should consider the following factors:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party both during and prior to trial; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
Moreover, Rule 1:7-4(a) requires the trial court to make findings of fact and conclusions of law on every motion decided by a written order that is appealable as of right. "Failure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). "Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Ibid.
Here, the provisions contained in the orders of December 3, and February 6, 2009, directing plaintiff to pay counsel fees and costs, are not supported by the trial court's factual findings and legal conclusions. R. 1:7-4(a). Accordingly, we reverse those two provisions of those two orders and remand the issue for reconsideration.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.