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Darien Dash v. Deborah Dash

November 30, 2012


Per curiam.


Argued November 14, 2012 -

Before Judges Reisner and Harris.

Plaintiff Darien Dash appeals from a Family Part order dated January 3, 2012, finding him in violation of a September 23, 2011 order requiring him to pay his ex-wife's rent, and awarding counsel fees to his ex-wife, defendant Deborah Dash. Finding no abuse of the trial court's discretion, we affirm.

The parties were married in 1994 and divorced in 2003. In connection with their divorce, the parties entered into a property settlement agreement (PSA) that required plaintiff to pay defendant's rent as part of his child support obligation. When plaintiff failed to make the payments, defendant was threatened with eviction, and she filed a motion to enforce the PSA. In plaintiff's prior appeal, we affirmed Judge Ronny Jo Siegel's September 23, 2011 order enforcing the PSA and requiring plaintiff to pay the rent within ten days of the date of that order. Dash v. Dash, No. A-1201-11 (App. Div. June 7, 2012).

While that appeal was pending, plaintiff once again failed to pay the rent, in violation of the September order. With his client facing eviction, defendant's attorney filed a motion in aid of litigant's rights on October 25, 2011, seeking enforcement of the September order and counsel fees. The fee application was supported by a detailed certification of services. After that motion was filed, plaintiff finally paid the rent. However, by that time, defendant had incurred the expense of filing the enforcement motion. On November 2, 2011, defendant's attorney, Paul Grosso, Esq., sent a letter to plaintiff's attorney, Borce Martinoski, Esq., noting that Martinoski had called him the day before, and explaining to Martinoski why the motion was filed against Martinoski's "client."

On November 28, 2011, Martinoski wrote to Judge Siegel asserting that plaintiff "recently retained" him and asking for an adjournment of the motion to allow him time to file opposition. In response, Grosso wrote the judge a letter stating that his client opposed the adjournment request. Grosso asserted his understanding that Martinoski had been representing plaintiff since at least November 1, and attached a copy of his November 2 letter to Martinoski. Grosso also cited plaintiff's documented history of delaying tactics in the case. The adjournment request was denied.

On January 3, 2012, Judge Siegel issued an order supported by a written statement of reasons. Noting plaintiff's "bad faith" in flouting the PSA and the September 23 order, the judge awarded defendant $2370 in counsel fees. This appeal followed.

Plaintiff first contends that the judge should have granted his adjournment request.*fn1 We cannot agree. Plaintiff had switched attorneys several times and had a documented history of foot-dragging. Plaintiff did not send Judge Siegel a copy of a retainer agreement or any other legally competent evidence to support his contention that he did not retain his new attorney until November 28. The record provided to us reflects that, at the time he filed the adjournment request, plaintiff's most recent attorney had clearly been involved in the matter for a month and had known since at least November 1 that the motion was returnable on December 2. The November 28 adjournment request was untimely. The motion was uncomplicated. We find no abuse of discretion in Judge Siegel's decision to deny the adjournment request. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1970), certif. denied, 58 N.J. 335 (1991).

Addressing the merits of defendant's motion, plaintiff argues that because he paid the rent, albeit long after the court-imposed deadline, the court should not have granted defendant an award of counsel fees. We cannot agree. Plaintiff repeatedly violated the PSA by failing to pay defendant's rent. As a result, she was threatened with eviction. When she filed her motion to enforce litigant's rights, plaintiff still had not paid the rent. Further, as Judge Siegel noted in her opinion, in paragraph 10.4 of the PSA, the parties agreed that in the event of a violation, necessitating an enforcement action, the defaulting party would be responsible for the other party's reasonable and necessary counsel fees.

In this case, a modest counsel fee award was entirely justified to make defendant whole for her expenses necessitated by plaintiff's flagrant violation of the court's September 23 order. Defendant's counsel filed a detailed certification of services, which in the circumstances, was sufficient to support the award. We find no "clear abuse of discretion" in the trial court's decision to award fees or in the amount granted. See Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Plaintiff's arguments on this point are without sufficient merit to require further discussion. R. 2:11-3(e)(1)(E).


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