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Davis Amedu v. Dorothy Amedu

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2011

DAVIS AMEDU, PLAINTIFF-APPELLANT,
v.
DOROTHY AMEDU, N/K/A FREEMAN, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0150-05C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 6, 2011

Before Judges Reisner and Alvarez.

Plaintiff Davis Amedu appeals pro se an August 16, 2010 counsel fee award in the amount of $4606.24 granted to his former wife, defendant Dorothy Amedu Freeman. He also seeks to have us determine that defendant's attorney has "unjustly enriched" himself with plaintiff's portion of the proceeds of sale from the marital home. Lastly, he demands a formal audit of his child support account, alleging that the management of the account violated his due process rights and was in furtherance of a conspiracy between the staff and the Family Part judge to "cover up" for improper conduct on the part of defendant's attorney. We affirm.

By way of background, the parties divorced on January 30, 2006, and signed a marital settlement agreement that same date. The agreement called for plaintiff to pay both child support and alimony; the latter obligation ceased when defendant remarried. The agreement provided for further modifications upon the occurrence of enumerated events, such as the sale of the marital home. As a result, although plaintiff was initially obligated to pay $273.00 per month towards the support of the parties' children and $125 per month in alimony, his obligation was modified on September 4, 2007, to only $221.42 weekly in child support. Because of these adjustments, there have been drastic revisions to the arrears balance in his account with probation. Suffice it to say that, after the last adjustment and formal, court-ordered audit of the account immediately prior to the August 16, 2010 order from which appeal is taken, and a credit for a lump-sum payment towards arrears, the balance due from plaintiff to defendant was adjusted to $7030.12.

When the marital home sold on March 17, 2009, plaintiff's share of the proceeds were paid into defendant's attorney's trust account. Certain disbursements were made from the account and, because of the ongoing dispute between plaintiff and defendant, counsel did not release the balance remaining to plaintiff, who appears to have terminated his relationship with his own attorney around that time, and has represented himself thereafter. Because defendant's counsel retained the funds, plaintiff filed an ethics complaint against him.

The August 16 order required plaintiff to advance his share of the cost of preparing a Qualified Domestic Relations Act order (QDRO) for his pension. In the order, the court authorized payment of the fee, along with various other obligations, from plaintiff's share of the proceeds of sale being held in trust by defendant's attorney.

On August 20, 2010, the Family Part judge entered an amended order, included in the appeal, finding plaintiff in violation of litigant's rights by virtue of his failure to comply either with the 2006 agreement or a March 23, 2009 enforcement order. Plaintiff was also required to provide documentation for the preparation of the QDRO. Furthermore, the order states: "[t]he [p]laintiff is to correct his error of filing a 1099 in [d]efendant's name and is responsible for all costs associated with rectifying this error within thirty (30) days of the court's [o]rder. If the [p]laintiff continues to remain in violation of litigant's rights, the [d]efendant may apply to the court, upon notice to the [p]laintiff, for bench warrant relief."

In setting forth factual findings and legal analysis for the August 16, 2010 order, the court noted on the record that plaintiff had cross-moved for leave to file a complaint against the individual Monmouth County probation officer who managed his child support account. The Attorney General's Office had forwarded a letter to the court stating that plaintiff's "cause of action" against the officer was simply not sustainable.

The court said on the record:

What is absolutely clear is that the plaintiff is in violation of litigant's rights because he has been noncompliant with the order of March 23, [] 2009. That order in explicit language ordered that the plaintiff's total arrears were to be paid from the proceeds of the sale of the former marital residence. . . .

As part of the order of March 23, 2009, in addition to the issue of the arrears, the [c]court ordered that child support be recalculated. And as part of that remedy, the parties were given a 60 day discovery period in order to exchange case information statements, 2008 W-2 forms, 2008 tax returns, and three recent pay stubs.. . . .

Here, the defendant alleges and plaintiff has not disputed his failure to abide by the [c]court's prior order. His admissions here attempting to implead new parties raising a variety of allegations which I find to be wholly unworthy of belief and frankly were it not for the litigation [] privilege which Mr. Amedu enjoys probably would be subject to a cause of action grounded in libel, slander or malicious prosecution. . . . [I] look at both the language of Williams [v.] Williams, 59 N.J. 229, a case decided by our Supreme Court in 1971 and also the factors in Rule 5:3-5(c).

And here, what dominates the most is that Mr. Amedu does have an ability to pay and [of] greater consequence or at least as equal consequence, this is a motion to enforce a prior court order. He certainly has not acted in good faith. His position has been a continuous and unreasonable failure to abide by . . . the March 2009 order that has left the former wife with no other choice than to file as she has done here, it is the bad faith of Mr. Amedu that causes me to award counsel fees. . . .

I find him to be in violation of litigant[']s rights of that order. He [is] compelled to provide both current and past case information statements to the defendant within 30 days of the order of today. . ..

On the counsel fee issue, I [have] granted it for the reasons I [have] earlier articulated. That share is to be deducted from the plaintiff's share of the funds being held in the trust account of [defendant's attorney].

Plaintiff's points on appeal are:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING LEGAL FEE[S] TO THE DEFENDANT WHERE THERE ARE SUBSTANTIAL GROUNDS THAT THE DEFENDANT'S APPLICATION WAS PREDICATED AS A DISTRACTION IN DUE TO THE ETHIC[S] ACTION AGAINST HER ATTORNEY

POINT II

CHARLES P. STONE ESQ., ATTORNEY FOR DEFENDANT UNJUSTLY ENRICHED HIMSELF WITH MY MONEY ENTRUSTED ON HIM

POINT III

PROBATION MISMAN[A]GED THE CHILD SUPPORT ACCOUNT NUMBER CS62994605A AND THEREFORE, A COMPLETE AUDIT OF THE ACCOUNT IS NECESSARY

As the trial court indicated, the standard for the award of counsel fees is set forth in Rule 5:3-5(c) and Williams v. Williams, 59 N.J. 229 (1971). Clearly, the court may, after consideration of relevant factors, make an award of counsel fees. We reverse only where an abuse of discretion has occurred. Eaton v. Grau, 368 N.J. Super. 215, 225 (2004).

We are satisfied that the Family Part judge appropriately considered the factors enumerated in Rule 5:3-5(c) and in Williams. He found that plaintiff acted in bad faith with regard to his financial obligations. He paid neither child support he owed nor expenses, such as medical costs, defendant incurred on behalf of the children. The record substantially supports those conclusions. The issues were litigated on several occasions, to no avail. Plaintiff's failure to pay for his share of professional services, to pay expenses on behalf of the children and remain up-to-date on child support, and a "mistaken" filing of a 1099 on behalf of his former wife establish ample grounds for a decision enforcing litigant's rights. An award of fees expended to compel compliance with court orders is not an abuse of discretion, and will be upheld.

Plaintiff's second point on appeal is the entirely unfounded accusation that defendant's counsel "unjustly enriched himself with my money entrusted on him." Defendant does not offer support for this proposition; in fact, the record indicates defendant's attorney maintained appropriate records of disbursements from the account. In any event, this point cannot be considered on appeal as, by raising the issue, plaintiff in effect asks us to act as a fact-finder in the first instance. The appellate process does not allow us to make such findings of fact, plaintiff's real request, except in the rarest of instances; this circumstance does not fall into any of those exceptions. Pressler & Verniero, Current N.J. Court Rules, comment on R. 2:10-5 (2011) (observing that, "[d]espite the utility of [this court's] original-jurisdiction authority, it is clear that resort thereto . . . is ordinarily inappropriate where fact-finding . . . is necessary in order to resolve the matter"). We do not consider this point worthy of further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Finally, plaintiff seeks yet another formal accounting. The record indicates, however, that such an accounting was completed by probation at the court's direction the day prior to oral argument on the application. Other than reiterating his demand, plaintiff does not explain the error he believes was committed by the court in relation to the audit that was completed. Accordingly, we do not consider this claim to be worthy of further consideration in a written opinion either. R. 2:11-3(e)(1)(E).

Affirmed.

20110718

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