JOSEPHINE S. PENZA v. ROBERT A. PENZA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5460-03T35460-03T3

A-1239-04T3

JOSEPHINE S. PENZA,

Plaintiff-Appellant,

v.

ROBERT A. PENZA,

Defendant-Respondent.

JOSEPHINE S. PENZA,

Plaintiff-Respondent,

v.

ROBERT A. PENZA,

Defendant-Appellant.

Argued (A-5460-03T3) October 6, 2005

 
Submitted (A-1239-04T3) October 6, 2005 - Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-687-02.

Robert J. Adinolfi argued the cause for appellant, Josephine S. Penza in A-5460-03T3 (Adinolfi and Spevak, attorneys; Scott J. Levine, Kathryn M. Laughlin, and Robert J. Adinolfi, on the brief).

Robert A. Penza, appellant, argued the cause pro se in A-5460-03T3.

Adinolfi and Spevak, attorneys for respondent, Josephine S. Penza in A-1239-04T3 (Robert J. Adinolfi and Scott J. Levine, on the brief).

Robert A. Penza, respondent pro se in A-1239-04T3.

PER CURIAM

Plaintiff and defendant were married on March 25, 1995; their only child, Victoria, was born on November 18, 1999. In October 2001, plaintiff filed a complaint for divorce. Judge Laskin entered a series of pendente lite orders during the pendency of the divorce action. The orders addressed the parties' responsibilities for the upkeep of the marital home, automobile and insurance payments, and their personal and medical expenses. The orders also established pendente lite support for plaintiff and Victoria.

The divorce trial was held from January 29, 2003, to February 20, 2003. Judge Laskin issued a May 29, 2003 written opinion that he memorialized in a July 3, 2003 final judgment of divorce (FJD). Because Judge Laskin was rotated to an assignment out of the Family Part, Judge Meloni heard the parties' post FJD motions; in doing so, he was required to interpret Judge Laskin's pendente lite orders.

In docket number A-5460-03, plaintiff appeals from multiple post-FJD orders of Judge Meloni, which, in part: denied her request to make expenditures from the parties' 401(k) account; held her responsible for back mortgage and tax payments; and denied her request for counsel fees arising out of the motions. In docket number A-1239-04, defendant appeals from a September 2, 2003 order of Judge Laskin that required defendant to pay $45,000 to plaintiff in counsel fees arising out of the divorce proceedings.

We have carefully considered the arguments of both parties in light of the facts. We find each party's arguments to be without sufficient merit to warrant discussion in a written opinion. Accordingly, we affirm substantially for the reasons expressed by Judge Meloni as to the post-FJD motions, and for the reason expressed by Judge Laskin in awarding plaintiff counsel fees for the divorce action. R. 2:11-3(e)(1)(A) & (E). We add only the following.

Plaintiff's attorney is currently holding $10,698.55 in escrow from the sale of the marital home. That sum was arrived at as follows. By order of April 2, 2004, plaintiff was required to deposit into her attorney's trust account an amount representing payments she improperly made to medical providers and others from defendant's 401(k) account. The order also said that the sum owed would constitute a lien on plaintiff's share of the proceeds from the sale of the marital home.

On April 19, 2004, Judge Meloni entered another order that disallowed plaintiff's use of defendant's 401(k) proceeds for payment of certain expenses. Again, the court ordered plaintiff to pay that sum into plaintiff's counsel's trust account.

Subsequently, on May 26, 2004, the court ordered that $21,397.10 be deducted from plaintiff's fifty percent share of the net proceeds from the sale of the marital home for deposit into her attorney's trust account. The May 26, 2004 order said that "[i]f Plaintiff does not appeal within the time allowed by Rule, the monies are to be released to Defendant." (emphasis added).

The next day, the court amended that order; it reduced the amount to be held in escrow from plaintiff's share of the proceeds to $10,698.55. The remaining escrowed funds represented defendant's share of plaintiff's disallowed payments. Though the amended order said that if plaintiff did not appeal the escrowed amount should be released to her, we perceive that to have been an error because the escrowed sum represented money that belonged to defendant based on plaintiff's improper use of funds for her own expenses.

Given this factual and procedural background, in that we have affirmed Judge Meloni's order disallowing those payments, the money in escrow shall be turned over to defendant by plaintiff's counsel within thirty days.

 
Affirmed.

We have consolidated the appeals for purposes of this opinion.

(continued)

(continued)

5

A-5460-03T3

October 19, 2005