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Andrea Sherry, F/K/A andrea Zebe v. Charles W. Zebe

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 8, 2011

ANDREA SHERRY, F/K/A ANDREA ZEBE, PLAINTIFF-RESPONDENT,
v.
CHARLES W. ZEBE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1838-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2011

Before Judges Grall and C.L. Miniman.

Defendant Charles W. Zebe appeals from post-judgment orders in a matrimonial case. With the exception of the counsel fees awarded in paragraphs three and five of the May 24, 2010 order and defendant's obligation to pay expenses imposed in paragraph three of the January 22, 2010 order, we affirm.

The parties were divorced in October 1996, and the final judgment incorporates their property settlement agreement. They have two children both of college age. Eight years after the divorce, the parties litigated issues related to responsibility for the children's expenses. An appeal and cross-appeal followed, and on September 13, 2006, we reversed and remanded for further proceedings. Sherry v. Zebe, No. A-2927-04 (App. Div. Sept. 13, 2006).

The issues remanded by this court, as well as additional issues raised on subsequent post-judgment motions filed in the trial court, are addressed in an order entered on October 16, 2009. Pertinent here, that order includes an allocation of responsibility for college tuition and other expenses of the children, such as computer software, sorority dues, travel expenses, uniforms and bedding. The allocation is twenty-five percent to plaintiff and seventy-five percent to defendant. The order also memorializes the judge's denial of defendant's request to compel use of funds in the children's custodial accounts for college expenses and permits plaintiff to use those funds toward her share of the college expense. In addition, the order requires defendant to pay $91,089.06 for counsel fees and costs - $3000 on the motions and $88,089.96 for fees on remand.

We cannot address the propriety of the October 16 order on this appeal. Notices of appeal and cross-appeal from that order were filed, Sherry v. Zebe, No. A-1532-09, and the appeal has been calendared for argument before us on May 9, 2011. Any objections to the October 16 order must be decided in that case, and any not raised there have been abandoned. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).

The first two orders from which defendant appeals were entered on January 22, 2010. We address them separately.

One order entered on January 22, 2010, denied defendant's motion for a stay pending appeal of the trial court's October 16 order. On March 12, 2010, this court also declined to stay the October 16 order on a motion defendant filed in A-1532-09. Defendant asks us to consider whether the trial court erred in denying a stay pending appeal, but he presents no argument as to why we should reconsider this court's prior order denying a stay.

Another January 22, 2010 order was entered on plaintiff's motion to enforce prior orders, including the October 16 order. The enforcement order reiterates the allocation of responsibility for college expenses stated in the October 16 order and the denial of defendant's request regarding funds in the children's custodial accounts. In addition, it requires defendant to pay the $91,089.06 counsel fee award entered on October 16 within ten days unless this court granted a stay, and it directs defendant to pay his share of the college expense as previously ordered.

The judge granted additional relief in the enforcement order. Paragraph three directs defendant to pay $120 for one daughter's room and board at college, $39.75 for her train travel to college and $1200 as his share of the cost for two laptop computers plaintiff purchased for their daughters. The judge made no findings of fact and gave no explanation for her decision to compel defendant to pay these additional costs.

Although plaintiff requested counsel fees on the January 22, 2010 motion, the judge did not address that request. She denied it without prejudice and stated that she would decide it if plaintiff renewed her application after this court ruled on defendant's application for a stay of the October 16, 2009 order.*fn1

In April 2010, defendant again moved to enforce the court's prior orders, renewed the application for fees that had been denied without prejudice in the January 22, 2010 order and sought addition fees on the present motion. The order on that motion was entered on May 24, 2010.

The judge found defendant in violation of litigant's rights for failure to pay the $91,089.06 in counsel fees ordered on October 16, 2009, and she authorized the issuance of a bench warrant if he did not pay those fees by June 1, 2010. Defendant paid the $91,089.06 fee prior to a warrant being issued.

The judge also ruled on counsel fees. Paragraph three of the May 24, 2010 order obligates defendant to pay $7700 for the fees plaintiff incurred on the motions decided on January 22, 2010. Paragraph five requires him to pay $2635 for fees incurred on the April 13 motion.

Defendant raises five issues on appeal:

I. The Trial Court Erred in Ordering Defendant to Pay for Train Ticket(s), Computer(s), Cancellation Fee for Room and Board, Etc.

II. The Trial Court Erred in Failing to Find that Plaintiff's Counsel Fee Requests were Reasonable.

III. The Trial Court Erred in Granting Plaintiff's Counsel Fee Request for Services Rendered in the Appellate Division.

IV. The Trial Court Erred in Denying a Stay.

V. The Trial Court Erred in Issuing a Bench Warrant.

The arguments presented in points four and five do not require extended discussion in a written opinion. R. 2:11-3(e)(1)(E). In point four, defendant questions the denial of the stay of the October 16, 2009 order. As noted above, this court previously denied a stay of that order, and defendant has presented no argument as to why we should reconsider our colleagues' determination. Accordingly, we decline to revisit the issue. The issue raised in point five is moot. As noted above, defendant complied with the order before the bench warrant was issued. Thus, the order has no continuing effect. See Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207-08 (App. Div. 2009).

In contrast, the issues raised in points one and two require a remand. Relevant to paragraph three of the second January 22, 2010 order, the judge made no findings of fact and stated no reasons for requiring defendant to pay for laptops, train expenses and room and board. We can speculate that the judge's reasons are the same as those she gave when she ordered defendant to contribute to similar expenses on October 16, 2009, but we decline to do so because clarity is essential to bringing this protracted litigation to an end. Accordingly, we remand with direction for the judge to submit a written statement of her findings and reasons relevant to paragraph three of the second January 22, 2010 order.

The judge's findings with respect to the counsel fees awarded in paragraphs three and five of the May 24, 2010 order are similarly inadequate. There is no indication that the judge did anything other than award fees in the total amount requested, and it is quite apparent that the statement of services, at least with respect to the $7700 fee awarded in paragraph three, includes billings for services rendered on appeal that the judge did not have the authority to award. See R. 2:11-4. Accordingly, we remand for reconsideration of the fees awarded in paragraphs three and five of the May 24, 2010 order and a written statement of the judge's findings and reasons relevant to those paragraphs.

Further orders from this court are necessitated in the interest of judicial economy and elimination of unjustifiable expense and delay. R. 1:1-2(a). The matters we are remanding are related to the order of October 16, 2009, and the merits of that order are at issue on the parties' appeal and cross-appeal under A-1532-09. Accordingly, we retain jurisdiction over the issues remanded and direct consolidation of this appeal with A-1532-09. We further direct the judge to provide the written statements required by this opinion to the clerk of this court and the parties within twenty days of this opinion. When the clerk obtains the statement of reasons required by this opinion, the clerk will calendar the consolidated appeals for argument on May 9, 2011. At that time, the court will address the issues raised in A-1532-09 and, with the benefit of the judge's written statements, address the issues raised in points one through three of defendant's brief on this appeal. No further briefing will be permitted without leave of court.

Affirmed in part and remanded for further action by the trial judge in conformity with this decision. Jurisdiction is retained, and this appeal is consolidated with A-1532-09.


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