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J.M v. J.R

June 29, 2011

J.M., PLAINTIFF-RESPONDENT,
v.
J.R., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-282-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2011 - Decided Before Judges Messano and Waugh.

Defendant J.R. appeals from the Family Part's order of January 29, 2010 that ordered him to pay plaintiff's counsel fees in the amount of $3156.35. We have considered the arguments defendant has raised in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

We need not recite in detail the long and contentious history between the parties. That is adequately set forth in our prior opinion, J.M. v. J.R., No. A-2953-08 (App. Div. April 15, 2010). It suffices to say in that prior appeal we remanded for a custody hearing regarding the parties' daughter, then three-years old, but in all other respects denied defendant's requests for relief. Id. at 13.

While the appeal was pending, plaintiff sought an order garnishing defendant's wages to satisfy a judgment of $5846.32 entered on July 12, 2007 (the 2007 judgment) that reflected an award of counsel fees to plaintiff in the underlying domestic violence action.*fn1 Defendant opposed the motion and sought, among other things, vacation of the judgment. On June 26, 2009, the Family Part judge in Hunterdon County, where the action was then-venued, heard argument on plaintiff's request.

Concluding she had jurisdiction to enforce the judgment despite the pending appeal, the judge granted plaintiff's request for a wage execution. The judge denied defendant's request to vacate the judgment without prejudice based upon his representations that the judgment was under appeal. The judge also denied defendant's request to stay enforcement of the wage execution, and "bifurcated" defendant's request for a change in venue, indicating in her "preliminary decision" that the motion would be decided by the presiding judge of the Family Part.

On July 6, the judge entered an order directing the Sheriff of Somerset County to garnish defendant's wages to satisfy the 2007 judgment. On the same day, defendant filed a motion in Hunterdon County seeking to vacate the order. Alternatively, defendant sought a stay of the wage execution pending appeal.

On July 9, the Presiding Judge of the Family Part entered an order transferring venue because both parties were employed by Somerset County, i.e., the same vicinage as Hunterdon County. On July 15, plaintiff filed a cross-motion seeking counsel fees and costs. In her certification, plaintiff alleged that defendant had misrepresented the issues that were the subject of his appeal at the June 26 hearing because the wage execution was not a subject of the appeal, and that defendant should have awaited the transfer of venue before filing his motion. Based upon defendant's misrepresentations and "continuous filings with the Superior Court as well as the Appellate Division," plaintiff sought an award of counsel fees incurred in seeking the wage execution and in responding to defendant's latest motion. Plaintiff's counsel attached a certification of services seeking $1620 in fees and costs.

On July 26, defendant sent a letter to the Assistant Division Manager of the Family Part in Hunterdon County noting the change of venue and withdrawing his motion to vacate. On September 3, the parties appeared before the Family Part judge in Middlesex County for argument on plaintiff's cross-motion. Defendant claimed he had re-filed his motion in Middlesex County.*fn2

The judge denied defendant's request to vacate the wage execution or stay its enforcement, concluding the issue had been addressed by the Family Part judge in Hunterdon County. Regarding plaintiff's cross-motion for fees, the judge asked plaintiff's counsel to re-send the papers with copies to defendant, and he provided defendant with the opportunity to oppose the request. Plaintiff's counsel forwarded another certification of services and costs in the total amount of $2847, and defendant filed opposition on September 18.

On October 9, the judge entered an order denying plaintiff's request for counsel fees. In an attached memorandum of decision, the judge noted that defendant had withdrawn his motion believing it would be heard in Middlesex County. However, the judge reiterated his remarks made at the September 3 hearing -- that defendant's request sought reconsideration of the prior judge's decision and that it was not properly before the court. Turning to plaintiff's request for counsel fees, the judge reviewed the factors contained in Rule 5:3-5(c). He concluded that he lacked any information regarding the parties' financial circumstances and ability to pay. The judge also noted that defendant's actions, while "legally incorrect," "were as a result of his unfamiliarity with the rules of law as he was pro se." The judge noted plaintiff had previously been awarded $5541.54 in fees. Lastly, the judge observed that "[m]uch of the litigation in this matter was as a result of the defendant appearing pro se and not appreciating the applicable law." He denied plaintiff's fee request.

Plaintiff moved for reconsideration on October 29. In her certification, plaintiff set forth in detail the repetitive motion practice that allegedly was engendered by defendant's relentless attempts to vacate the previous award of counsel fees. She attached a prior order from the Family Part threatening defendant with sanctions "as a deterrent" if he continued to file such motions. Plaintiff also attached copies of more than one dozen letters defendant sent to the court ...


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