Superior Court of New Jersey, Law Division, Atlantic County
PUBICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Decided: October 11, 2 016
M. Lands, for plaintiff.
A. Bonett, for defendant.
COMMITTEE ON OPINIONS
opinion deals with the interpretation of the child support
lien statute, N.J.S.A. 2A:17-56.23b. The lien, created by
operation of N.J.S.A. 2A:56.23b, has " [p]riority over
all other levies . . . against the net proceeds of any
settlement negotiated . . . subsequent to filing of a lawsuit
. . . unless otherwise provided by the Superior Court . . .
statute requires a child support judgment search to determine
if a plaintiff is obliged to pay a child support obligation
before the "net proceeds" of a settlement of a
civil suit can be distributed to plaintiff. N.J.S.A.
2A:56-23b. If plaintiff has an outstanding child support
obligation, the statute mandates the payment of that
obligation out of the net proceeds of the settlement of the
civil litigation. N.J.S.A. 2A:17-56.23b(b)(2). The net
proceeds of the settlement are defined in N.J.S.A.
2A:17-56.23b(a) as "[a]ny amount of money, in excess of
$2, 000, payable to the prevailing party . . . [in civil
litigation] . . . after attorney's fees, witnesses fees,
court costs, . . . and other costs related to the lawsuit . .
. are deducted from the . . . award . . . ."
matter before the court is a relatively routine personal
injury automobile accident action filed as a result of a
motor vehicle accident that occurred on June 4, 2014, in
Atlantic City. Defendant, Tonya M. Thomas, was the operator
of a vehicle owned by defendant, Enterprise Leasing Company
of Philadelphia, LLC d/b/a Enterprise Rent-A-Car, that was
proceeding west on Baltic Avenue through its intersection
with Rosemont Place. Plaintiff, Daren Smiley, alleges that
defendant operated the vehicle negligently and that her
negligence proximately caused the accident and his alleged
injuries. Plaintiff seeks damages for the pain, suffering,
disability, and impairment he claims to have experienced as a
proximate result of defendant's negligence.
prior to the filing of the civil suit, in accordance with
Rule 1:21-7(c), plaintiff and plaintiff's
counsel entered into a standard contingent fee agreement.
Rule 1:21-7(c) provides in pertinent part:
(c) In any matter where a client's claim for damages is
based upon the alleged tortious conduct of another . . . an
attorney shall not contract for, charge, or collect a
contingent fee in excess of the following limits:
(1) 33⅓% on the first $750, 000 recovered
is the father of three children. On April 5, 2004, a child
support order was entered by the Superior Court, Chancery
Division, Family Part requiring plaintiff to pay child
support in the amount of $25 a week for the benefit of one of
his children. On July 8, 2010, a second child support order
was entered by the same court requiring plaintiff to pay
child support in the amount of $89 a week for the benefit of
the two remaining children. At the time of the filing of the
application, plaintiff owed $19, 306.04 in unpaid child
support. The plaintiff's child support obligation has
been docketed with the Clerk of the Superior Court. N.J.S.A.
interpreting N.J.S.A. 2A:17-56.23b, the Appellate Division
opined that only the amount left of the plaintiff's
settlement after litigation costs that exceeds $2000 is
subject to the lien created by N.J.S.A. 2A:17-56.23(b).
Simpkins v. Saiani, 356 N.J.Super. 26, 28 (App. Div.
2002). Furthermore, if the net proceeds are less than the
amount of the child support judgment, then the entire amount
of the "net proceeds" sans $2000 shall be paid to
the Probation Division as "partial" satisfaction of
the judgment. Id. at 30.
counsel brings this application seeking an order to
judicially sanction the retroactive modification of the
contingent fee agreement with plaintiff. The judicially
sanctioned retroactive modification of the fee agreement
would allow plaintiff's counsel to reduce his fee and to
authorize plaintiff's counsel to distribute the
difference between the fee plaintiff's counsel is
entitled to receive in accordance with the written fee
agreement and the judicially approved reduced fee to
plaintiff as an incentive for plaintiff to accept the
settlement proposal. In addition, plaintiff's counsel
seeks an order of ...