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Keenan v. Keenan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 16, 2010

PHYLLIS KEENAN, PLAINTIFF-RESPONDENT,
v.
ROBERT KEENAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-298-07D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 20, 2010

Before Judges Gilroy and Sapp-Peterson.

In this post-judgment matrimonial action, defendant Robert Keenan appeals from the February 20, 2009, order directing him to pay $1560 in attorney fees; $595.45 in financing costs to complete equitable distribution; and $1050 for accounting fees incurred in order to prepare Qualified Domestic Relations Orders (QDROs). We dismiss the appeal as moot in view of the April 17, 2009, order entered while this appeal was pending.

Plaintiff and defendant were divorced by Final Judgment of Divorce (FJOD) entered on November 13, 2008. The parties executed a Property Settlement Agreement (PSA) that was incorporated into an amended FJOD. In early 2009, plaintiff filed a motion to enforce litigant's rights (ELR) seeking an order compelling defendant to complete equitable distribution, an award of counsel fees and costs in connection with completion of the equitable distribution, and accounting fees for preparation of the parties' respective QDROs. The court considered the motion as unopposed and the allegations set forth in the motion as "uncontroverted." The court entered two orders, both dated February 20, 2009. The first order designated plaintiff as attorney-in-fact for purposes of segregating two financial accounts and completing QDROs to accomplish same. The second order directed defendant to pay:

(1) $1500 in counsel fees plaintiff incurred in enforcement of the terms of the FJOD, (2) $595.45 as reimbursement to plaintiff for financing costs she incurred resulting from defendant's lack of cooperation, and (3) $1050 to an accounting firm representing necessary costs for preparation of the QDROs. The order provided that all of these obligations would be satisfied by subtracting them from the sum owed by plaintiff to defendant for equitable distribution.

On March 10, 2009, defendant sought reconsideration of the two orders, claiming that he was under the care of a physician and had not received notice of plaintiff's ELR motion. Plaintiff opposed the motion and cross-moved for counsel fees incurred in defense of the reconsideration motion. On March 31, 2009, defendant filed a notice of appeal.

The trial court, apparently unaware of the pending appeal, decided the motions on April 17, 2009. Although the court found that it appeared from the record that plaintiff's counsel complied with "the necessary steps to notify defendant at his last known address[,]" the court concluded that it would be an "extreme hardship to order defendant to pay $3,305.45 in attorney's fees and financial fees[.]" The court also noted that it did not appear defendant took issue with that part of its February 20 "[o]rder that allowed plaintiff to act as attorney[-]in[-]fact on his behalf due to his non-compliance." Hence, the court denied reconsideration of the "$595.45 financial fee and the $1[]050 fee for the QDRO." The court denied plaintiff's request for counsel fees in connection with her defense of the reconsideration motion.

In this appeal, defendant contends he is not responsible for paying $3205.45 as ordered by the court in the February 20, 2009 order. In view of the April 17, 2009 order modifying that portion of the order directing him to pay the $3205.45, the issues on appeal are moot and the appeal is hereby dismissed.

Appeal dismissed.

20100916

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