On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-623-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and C. L. Miniman.
This appeal arises from an application by Budd Larner, P.C. (Budd Larner), the attorney for John R. Pernini (husband), in a divorce action to enforce a charging lien pursuant to N.J.S.A. 2A:13-5 (Lien Act). Budd Larner sought to enforce the lien against the former marital residence, the principal asset owned by the parties jointly. Patricia M. Pernini (wife), objected and prevailed. Budd Larner appeals. We affirm.
The relevant facts are undisputed. Almost three years after Budd Larner's representation began, it moved to be relieved as counsel due to the husband's lack of cooperation and subsequent disappearance. No one, including Budd Larner nor the wife, knows of the husband's present whereabouts. Budd Larner also sought a charging lien. On May 29, 2009, the judge relieved Budd Larner from representing the husband and granted the petition for a $159,099.56 charging lien.
On June 30, 2009, a final judgment by default was entered against husband. The judge determined the equitable share of each party, and ordered that arrearages for pendente lite alimony and child support owed to the wife, would be deducted from the husband's share of the martial assets. This reduced the value of husband's share to $1064.94. Specifically, the judgment provides:
11. The wife has the right to buy-out [sic] the husband's interest in the former marital residence. After applying the appropriate set-offs of monies the parties owe to each other, the wife shall pay the husband the sum of $1,064.94 for his interest in the marital residence. This amount shall be reduced by any support arrears and interest that may accrue from the date of this Judgment until the date the wife refinances the marital mortgage.
12. The wife shall have sixty (60) days from the date of the Final Judgment of Divorce to refinance the marital mortgage. At the time of the refinance in the event there should be any monies owed to the husband then his buy-out payment shall be held in trust for the children to pay towards their foreseeable medical and education expenses in accordance with [N.J.S.A.] 2A:34-23.
In addition, paragraph 9 of the divorce judgment granted the husband sole title to several personalty items.*fn1
Budd Larner submitted a proposed form of order regarding its lien, providing that the lien attach to the marital home. The wife objected. The judge heard oral argument and concluded that Budd Larner's lien could not reach the marital home. He reasoned:
As the Judgment was not in [the husband's] favor, Budd Larner does not have a charging lien on the former marital residence . . . .
Budd Larner's services have not provided [the husband] with value in the former marital residence. At most, it could be argued $1,064.94 in value has been created, but as stated above, if said money was paid it was to be paid ...