KAREN A. DEMATTEIS v. JON DEMATTEIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4117-01T34117-01T3

KAREN A. DEMATTEIS,

Plaintiff-Appellant/

Cross-Respondent,

v.

JON DEMATTEIS,

Defendant-Respondent/

Cross-Appellant.

_______________________________________________________________

 

Submitted October 4, 2006 - Decided November 22, 2006

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Essex and Morris

Counties, FM-1206-97, FM-14-01-03.

Henry F. Furst, attorney for appellant/cross-

respondent.

Robert Ricci, Jr., attorney for respondent/

cross-appellant.

PER CURIAM

This is the fourth appeal in this post-judgment matrimonial case. We consolidated plaintiff's first three appeals, and in an unpublished opinion we ruled as follows: (1) the trial court's decision setting plaintiff's alimony at $90,000 per year, with an enhancement for five years, was wrong, and plaintiff was entitled to permanent alimony of $128,900 a year; (2) the trial court's refusal to grant plaintiff pendente lite arrearages was wrong, and the trial court should determine the arrearages on remand; (3) the trial court's order on plaintiff's initial request for counsel fees and expert witness fees was unsupported by findings of fact and conclusions of law, and therefore would have to be determined anew on remand; (4) the trial court's judgment failed to address plaintiff's claim that she should be named as a beneficiary on the defendant's disability and life insurance policies, and therefore would have to be determined on remand; and (5) the trial court failed to make findings of fact and conclusions of law on plaintiff's apparently warranted request for counsel fees incurred in her attempts to enforce the judgment and post-judgment orders. Those matters, including the question of whether defendant should be incarcerated for willful failure to abide by court orders, were remanded. In a motion not authorized by the rules governing appellate practice, plaintiff asked that we remand the case to another county. We denied the motion in our opinion with this observation:

Moreover, we note that the record submitted with the motion does not reveal any request to the trial court that it recuse itself from the case, to say nothing of an order denying recusal. Although the issue of recusal is not properly before us, we note in passing that we perceive no justification for remand to another judge. . . . Although we believe the judge erred in some respects during these complex and highly contentious proceedings, he nonetheless carefully weighed and selected various methods of enforcement in the exercise of his discretion, based on his many years of experience as a highly regarded matrimonial judge. Therefore, the motion is denied.

[DeMatteis, supra, slip op. at 17 n.1.]

On plaintiff's post-decision motion, we awarded her $25,000 in counsel fees and costs.

While the first three appeals were pending, plaintiff continued her efforts to enforce a variety of court orders. Without discussing each and every proceeding below, we note the following. On October 12, 2001, the judge granted plaintiff's application to appoint a receiver to take control of defendant's dental practice, fixed arrears at $141,988.33, and issued a revised arrest warrant requiring defendant to pay $50,000 to avoid jail.

In her initial brief in the present appeal, plaintiff presented arguments with respect to orders entered in Essex County on March 7, 2002 and April 12, 2002.

The judge's entry of the April 12, 2002, order is troublesome because by letter dated April 2, 2002, to the attorneys for both parties, he indicated that he had decided to recuse himself from the case, explaining that

[i]t appears that Mrs. DeMatteis feels that I am bias[ed] against her and no matter what decision I will make she will perceive it unfair. In the interest of justice to everyone, I have asked Judge Volkert to assign a new [j]udge to this case.

I believe that a decision can be made upon submissions, based on the limited issue of remand. Since the Appellate Division exercised its own jurisdiction and only arrears and the question as to whether they will be extinguished, modified or enforced should be left open at this time, as well as post judgment modification seeking to modify the present order. These I believe can be handled by any [j]udge within our jurisdiction.

Plaintiff describes this as a sua sponte recusal, and it appears to be precisely that. The record does not shed light on why the judge continued with the case, thereafter giving the order of April 12, 2002. However, neither party raises this as a point of error, and on May 23, 2002, the presiding judge of the Family Part entered a consent order transferring the case from Essex County to Morris County.

After a number of proceedings before three judges in Morris County, an order was entered on April 28, 2004. Plaintiff's amended notice of appeal identified as at issue the follow paragraphs of that order: 3, 5, 6, 7, 10, 13, 14, 18, 25, and 26. Paragraph 3 denied plaintiff's remaining requests for pendente lite arrears. Paragraphs 5 and 7 contain provisions relating to life and disability insurance that are not briefed on appeal. Paragraph 10 denied plaintiff's claim for $15,525.60 for "additional improper disbursements in violation of the April 12, 2002 Order." Paragraph 13 denied "[a]ll other requests for payment of college related expenses." Paragraph 25 denied plaintiff's application for counsel fees "in connection with this hearing." Paragraph 26 denied plaintiff's request for a bond so long as the April 12, 2002, order remains in place.

Defendant filed a cross-appeal from a number of provisions of the order of April 28, 2004, but his brief alleges only one error; namely, that the judge erred in imputing income to him.

We incorporate by reference the facts as set forth in our prior opinion and will discuss the additional relevant facts in relation to each of the points raised as we dispose of them.

In her first brief, plaintiff offered one overall point, arguing that the judge had failed to adequately enforce the judgment and prior support orders. But in an order dated

May 14, 2003, entered at the request of plaintiff, we remanded all matters to Morris County, including reconsideration of the

March 7 and April 12, 2002, orders. In light of the further enforcement proceedings in Morris County, the issues raised in that brief appear to be moot. Therefore, we will turn to the points raised in plaintiff's "supplemental" brief.

In her first point, plaintiff argues that the judge erred in refusing on remand to obey the order of this court for plaintiff's request for additional attorney's fees incurred before the first three appeals to be reconsidered. We noted in our prior opinion that the judgment of divorce, which was entered in Essex County on November 10, 1999, granted plaintiff a counsel fee award of $25,525 and an expert fee award of $25,475, for a total of $51,000. On the first appeal, plaintiff argued that the total award should have been no less than $72,000. Although we rejected the legal theory she offered for the specific increase of at least $72,000, we remanded for reconsideration of the $51,000 award and for reconsideration of the denial of legal fees for plaintiff's post-judgment efforts to enforce the judgment and subsequent orders. The Essex County judge, who failed to provide the requisite analysis for his earlier fee rulings, failed to follow our mandate; and instead, as noted, recused himself sua sponte. We have also noted that the parties acceded to that ruling by agreeing to a consent order transferring the case to Morris County.

In a written opinion dated March 29, 2004, the Morris County judge declined to consider plaintiff's request for fees on the following grounds:

Absent this court reviewing the entire record below and attempting to stand in the shoes of the trial judge [referring of course to the Essex County judge] and think as he did, this court does not have the ability to make his findings of fact and conclusions of law. This court simply does not have the "feel" of the case from the time of the filing, through the motions and through a trial and enforcement motions thereafter to make those findings. The only one who can make those findings is the trial judge. It is respectfully suggested that the issues of pre-trial and post judgment fees be remanded to the trial judge.

The judge's decision was contrary to our order of May 14, 2003, which reads, in pertinent part, as follows:

The matter is remanded to the Family Part, Morris County, to permit plaintiff to file . . . a motion for reconsideration of the orders of March 7, 2002 and April 12, 2002, and for other relief, and the court shall dispose of such application . . . . The matter shall be considered de novo by any judge who has not recused himself or herself, and shall be decided together with all other pending applications.

Plaintiff correctly argues that the failure of the judge to rule on this fee award issue was contrary to the remand. Tomaino v. Burman, 364 N.J. Super. 224, 234 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (the peremptory duty of the trial court, on remand, is to follow the appellate tribunal's mandate precisely). But, in this case a further remand would be inappropriate, although not for the reasons given by the trial judge.

On the remand, plaintiff sought a fee award of over $230,000. Although it appears that plaintiff attached a "summary of legal expenses," copies of retainer agreements, and billing records, she did not include those documents in her appendices on appeal. Nor did she submit an affidavit of services in support of her application for pendente lite counsel fees. Nor did she attempt to isolate the pendente lite fees from other fees she was seeking in connection with defendant's bankruptcy (from which he has emerged) and litigation with respect to the car wash in which defendant had invested. These two items were not included in the remand. Finally, plaintiff did not separate the amount of fees she was seeking for enforcement of orders. Thus, in short, plaintiff failed to provide the Morris County trial judge and this court with the information required by Rule 4:42-9(b). Therefore, although not for the reasons given by the trial judge, we affirm the denial of the fee award requested by plaintiff.

In her second point, plaintiff argues that the trial judge erred in her determination of defendant's ability to pay arrearages and further erred by placing the burden of proof on plaintiff to prove defendant's ability to pay. The record supports neither contention. At the hearing in question, the judge repeatedly asked defendant, who was then pro se, what proofs he had. In fact, he offered substantial evidence, which the judge found credible, that his ability to pay arrearages was limited. The judge then indicated that the plaintiff had the burden of producing evidence to the contrary, not the burden of proof. Ultimately, the judge found her proofs wanting, and we affirm on this point substantially for the reasons expressed by the trial judge in her written opinion of March 29, 2004, while noting that issues relating to the collection of arrearages are generally within the discretion of the trial court. Ribner v. Ribner, 290 N.J. Super. 66, 76 (App. Div. 1996); Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Since the trial judge's findings are supported by credible evidence, our limited scope of review precludes modification. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

In her third point, plaintiff argues that the trial judge erred in granting defendant a temporary, retroactive reduction in his 2003 alimony payments from $128,900 to $75,000 based on a change of circumstances. We reject plaintiff's argument that this ruling violated our first opinion setting alimony at $128,900 a year. Alimony orders are, after all, always subject to review and modification based on changed circumstances. Weishaus v. Weishaus, 180 N.J. 131, 140 (2004). We reject plaintiff's claim that the trial judge erred because defendant had not asked for a reduction. In fact, he had so moved in May 2002. We also reject plaintiff's claim that the judge erred because the change of circumstances was only temporary. Although it is generally true that "[t]emporary circumstances are an insufficient basis for modification," Innes v. Innes, 117 N.J. 496, 504 (1990), temporary reductions in support may be warranted sometimes. Kuron v. Hamilton, 331 N.J. Super. 561, 576 (App. Div. 2000). There was no evidence that the temporary reduction had interfered with plaintiff's ability to maintain her lifestyle; nor was there adequate evidence indicating that defendant had additional undeclared income or hidden assets. He had returned to New Jersey from California and was rebuilding his professional practice to the best of his ability. Taking all these factors into account, we cannot say the judge abused her discretion in granting him temporary relief during a period when his income had dropped precipitously, and we affirm substantially for the reasons expressed by the trial judge in the aforementioned written opinion.

In her fourth point, plaintiff argues that the trial judge erred by altering the March 7 and April 12, 2002, orders, and by allowing defendant to violate them without sanction. But, at the end of the hearing on February 19, 2004, plaintiff's counsel noted that although he had made "an application to review the 2002 orders of [the Essex County judge]," he was "withdraw[ing] [the] application . . . . [f]or reconsideration of the March and April 2002 orders . . . ." Therefore, no further comment is needed.

In her fifth point, plaintiff argues that the trial judge erred by improperly calculating pendente lite arrears for household expenses, and one of their son's fencing and food costs. After carefully considering the record and briefs, we are satisfied that plaintiff's arguments on these points are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by the trial judge in her aforementioned written opinion.

In her sixth point, plaintiff argues that error was committed when defendant's bond was reduced. But plaintiff withdrew her application for a bond, and asked, instead for a payment in lieu of the bond in the amount of $50,000. The judge granted that request, and further found that a bond was unneeded because the court-appointed receiver had control over all income generated by defendant. Plaintiff cannot now challenge a ruling she sought below. Brett v. Great Am. Recreaction, Inc., 144 N.J. 479, 503 (1996).

In her seventh point, plaintiff argues that the trial judge erred in failing to refer contempt of court charges against the defendant to the county prosecutor. But this request was made on May 30, 2003, and there is no indication that she reasserted it thereafter. Furthermore, the trial judge has broad discretion in deciding whether to send a matter to the county prosecutor, and we find no abuse of that discretion here.

In her eighth point, plaintiff argues that the trial judge erred in denying her request for counsel fees incurred in connection with the hearing. We affirm this ruling substantially for the reasons expressed by the trial judge in the aforementioned written opinion.

Defendant argues on cross-appeal that the judge erred in imputing income to him for the purpose of calculating alimony arrears. We affirm this ruling substantially for the reasons expressed by the trial judge, noting that she had substantial support in the record for her determination that in 2001 and 2002 defendant was voluntarily underemployed. Caplan v. Caplan, 182 N.J. 250, 268 (2005).

Affirmed.

 

DeMatteis v. DeMatteis, No. A-2027-99T3, A-5657-99T3, A-1906-00T3 (App. Div. February 15, 2002).

(continued)

(continued)

13

A-4117-01T3

November 22, 2006