EMMA WILKINSON v. DAVID A. WILKINSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6432-03T26432-03T2

EMMA WILKINSON, n/k/a

EMMA HESSENTHALER,

Plaintiff-Appellant,

v.

DAVID A. WILKINSON,

Defendant-Respondent.

_______________________________

 

Argued November 7, 2005 - Decided

Before Judges A. A. Rodr guez and Alley.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, FM-18-5004-76.

Philip D. Stern argued the cause for appellant.

Bertram P. Goltz, Jr., argued the cause for respondent (Robert J. Basil, attorneys; Mr. Goltz of counsel, and on the brief).

PER CURIAM

This matter has returned to us after we filed our opinion of January 28, 2003, in which we directed that remand proceedings be conducted consistent with that opinion. Having recited the history and circumstances of the litigation in some detail in that opinion, we need not rehearse them at length here.

It will suffice here to say that our January 28, 2003 opinion was part of a considerable history of attempts to resolve issues of support, and it addressed an issue presented by a trial court decision that upheld an alleged oral agreement. Defendant claimed that under this alleged oral agreement, plaintiff had waived any claims against him under an order entered in 1979. After the trial court had held that a valid agreement had been made whereunder plaintiff had relinquished rights under the 1979 order, we held as follows:

This is not so. Although an offer and acceptance may have been present, the oral contract fails for lack of consideration to plaintiff. Plaintiff received no benefit from defendant in exchange for her promise to release the judgment held by her against him. In view of the fact that plaintiff was not under any legal obligation to pay for the care of her emancipated son, the promise she made with defendant was unenforceable.

We also rejected the trial court's analysis that laches would bar plaintiff's enforcement of the 1979 order. In particular, we held as follows:

With regard to the court's alternative holding that laches should be invoked to deny the enforceability of the judgments, we disagree. Defendant has not relied to his detriment because plaintiff did not seek enforcement of the judgment for more than nineteen years. Any prejudice that may have been sustained because of documents that were destroyed by ACI, which might have shown how much defendant paid toward his son's stay at ACI, is irrelevant in view of the lack of consideration to support an oral agreement. However, the trial court's ultimate conclusion that it would be "fundamentally unfair to allow the parties to negotiate and orally agree to satisfaction of a debt in the form of a judgment and then subsequently allow collection and assessments of large sums of interest because an order of satisfaction was never obtained by the debtor party" speaks to the issue of post-judgment interest.

In our earlier decision remanding the matter to the trial court, we observed as follows with respect to post-judgment interest:

Post-judgment interest is ordinarily added to the judgment. R. 4:42-11(a)(i). To be sure R. 4:42-11(a) provides for post-judgment interest on all judgments, awards, and orders for the payment of money "except as otherwise ordered by the court and except as otherwise provided by law." Although a court may exercise its discretion in awarding pre-judgment interest, the grant of post-judgment interest is ordinarily not an equitable matter within the court's discretion. Bd. of Educ. of City of Newark v. Levitt, 197 N.J. Super. 239. 244-45 (App. Div. 1984). A court, however, may prohibit post-judgment interest upon a showing of good cause to the contrary. Id. at 245.

In view of the trial judge's comments, we deem it appropriate to remand this issue to afford the trial judge the opportunity to consider whether post-judgment interest should be awarded, and, if so, for what period of time.

In our view, the trial judge clearly erred on remand in denying plaintiff's request for post-judgment interest on the arrearages in the 1979 order.

As we have held, "in the case of private litigants, the grant of post-judgment interest is ordinarily not an equitable matter within the court's discretion but is, as a matter of long-standing practice, routinely allowed." Bd. of Education of City of Newark v. Levitt, 197 N.J. Super. 239, 244-45 (App. Div. 1984).

Judgment creditors thus are ordinarily entitled to post-judgment interest, although "a showing of good cause to the contrary" could warrant a reduction or denial of such entitlement. Id. at 245. See R. Jennings Mfg. Co., Inc. v. Northern Elec. Supply Co., Inc., 286 N.J. Super. 413, 418 (App. Div. 1995) (explaining that trial judges have the right to assign different post-judgment interest rates than those set forth in Rule 4:42-11 if the judge "finds particular equitable reasons for doing so"). Upon such a showing, the trial judge has the discretion to deny post-judgment interest. See Lehmann v. O'Brien, 240 N.J. Super. 242, 249 (App. Div. 1990) (explaining that the "grant or denial [of post-judgment interest] is discretionary with the trial judge").

On remand, the trial judge in this matter responded as follows to plaintiff's request for post-judgment interest:

in light of the "good cause showing to the contrary" standard, this Court . . . concludes that the imposition of post judgment interest in this case is unwarranted . . . .

The fact that the Plaintiff waited until the judgment was 19 years, 11 months and ten days old before she sought a revival and execution, further informs the Court that equitable considerations must be applied.

Moreover, the Appellate Division remanded the issue to, in the guiding context of this Court's earlier conclusion, "that it would be fundamentally unfair to allow the parties to negotiate and orally agree to satisfaction of a debt in the form of a judgment, and then subsequently allow collection and assessments of large sums of interest because an order of satisfaction was never obtained by debtor party," speaks to the issue of post judgment interest.

The Plaintiff received from the Defendant, the Court-ordered $30,486, and $5,050 in counsel fees, and $1,043.45 costs in the instant matter.

Their son received extraordinary and sole economic assistance from the Defendant in 1997 to address his desperate need of professional help. Indeed, further certifications informed the Court that the Defendant continues to unilaterally address their son's ongoing battle with addictions.

Fundamental principles of fairness and equity impel this Court, for good cause, to deny the Plaintiff further relief in the form of post judgment interest.

The result in the trial court on remand with respect to post-judgment interest cannot be sustained. It misconceives the purpose of the remand, which emphatically was not to endorse the trial court's earlier reasoning. Moreover, it presents a wholly inadequate basis for deviating from the usual rule that favors granting of post-judgment interest. Other than the bare recitation that "fundamental principles of fairness and equity" require denial of post-judgment interest, no rationale is articulated, and we note that at least one of the factors cited by the trial court as an equitable consideration favoring denial, namely, the delay by plaintiff in seeking enforcement of the 1979 order, was rejected by us in our earlier opinion as a basis for equitable relief, specifically, laches.

We see no reason for reviving this already rejected circumstance as a basis for one form of equitable relief into a purported new form of equitable relief. Neither this, nor any of the other circumstances decided by the trial court, constitutes the record, or the specificity of findings, upon which the usually available relief of post-judgment interest can be denied. Accordingly, defendant having failed to establish on the record before the trial court a basis for denying post-judgment interest, and in the absence of adequate findings, we direct that post-judgment interest be awarded.

The trial court must adhere to the directives of an appellate court. Jersey City Redevelopment Agency v. Mack Properties, 280 N.J. Super. 553, 562 (1995), Tomaino v. Burman, 364 N.J. Super. 224, 232 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). In fact, the trial court has a "peremptory duty" to comply with the appellate tribunal on remand. Jersey City Redevelopment Agency, supra, 280 N.J. Super. at 562. Thus, it is privileged to disagree with our pronouncements, but "the privilege does not extend to non-compliance." Ibid. (citing Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961)). In essence, the trial judge is required to follow the directives of the appellate tribunal and must not disregard or ignore them. Tomaino, supra, 264 N.J. Super. at 232. In this instance the trial court's actions represented in our view a departure from those standards.

Finally, we are compelled to note, with respect to the denial of plaintiff's post-judgment interest claims, the lack of findings by the trial court giving its reasons as to that disposition, and we are constrained to observe that we do not consider the conclusory assertions contained in the motion transcript to constitute adequate findings in the record provided to us. R.1:7-4, "Findings by the Court . . . on Motions," reads in relevant part, "(a) Required Findings. The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . . ." We stated in Matter of Will of Marinus, 201 N.J. Super. 329, 338-39 (App. Div.), certif. denied, 101 N.J 332 (1985):

The necessity to remind trial judges of their obligation to make findings of fact and conclusions of law arises far too frequently. Our case law is abundant with such reminders. E.g., State v. Singletary, 165 N.J. Super. 421, 424-425 (App. Div. 1979), certif. denied, 81 N.J 50 (1979), on remand, 170 N.J. Super. 454, (Law Div. 1979); Reiser v. Simon, 63 N.J. Super. 297, 300-301 (App. Div. 1960). Our Supreme Court has pointed out that "[f]ailure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J 563, 569-570 (1980), quoting Kenwood Assocs. v. Englewood Bd. of Adj., 141 N.J. Super. 1, 4 (App. Div. 1976). The duty to find facts and state conclusions of law is explicit in R. 1:7-4 . . . .

Nothing in the record warrants departing from the usual rule favoring such awards, and we remand for entry of a final judgment which shall include an appropriate award of such interest, with the parties to have the opportunity to make supplemental submissions concerning the amount of post-judgment interest to be awarded.

Insofar as the claim for attorney fees is concerned, it is true that the trial judge recognized on remand the factors that govern other rules of court and Williams v. Williams, 59 N.J. 229 (1971).

Generally, in matrimonial actions, the award of counsel fees and costs again rests in the discretion of the court. Williams, supra, 59 N.J. at 233; R. 5:3-5(c). The Supreme Court has explained "[t]he award of counsel fees in matrimonial actions is discretionary with the trial court, R. 4:42-9(a)(1), and an exercise thereof will not be disturbed in the absence of a showing of abuse." Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970).

Trial courts must evaluate the following factors in determining whether it should grant a wife's application for counsel fees and costs: "the court rule on counsel fees, [R. 4:42-9 and Rule 5:3-5,] the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23; See also Williams, supra, 59 N.J. at 233 (explaining that trial courts should focus on: (1) the wife's economic need; (2) the husband's ability to pay; and (3) whether the wife acted in good faith in instituting or defending the action). Specifically, the rules require trial courts making determinations on attorney fee applications to evaluate the following:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
 
[R. 5:3-5(c).]

Here, the trial court denied an award of counsel fees. Counsel fees and matrimonial cases typically go hand-in-hand. Not every such application is granted. But here, there is no basis to deny the mother her counsel fees. First, she did not get paid support. Second, she had to spend money to enforce a judgment. Third, she had to go through an appeal that vindicates her. The trial judge has to accept our decision and effectuate it even if he does not agree with it.

We conclude that the judge mistakenly exercised his discretion in denying plaintiff's application for counsel fees and costs.

As a result, we reverse, and we remand in addition to the remand for the assessment of post-judgment interest as directed above for the entry of appropriate amount of attorney's fees to be included in the judgment, for the parties to be afforded an opportunity to submit supplemental materials bearing on the amount of fees.

 
Reversed and remanded. We retain jurisdiction. Remand proceedings shall be completed within ninety days of the filing of this opinion.

(continued)

(continued)

11

A-6432-03T2

December 13, 2005