JOHN M. BROOKS, JR. v. MARY K. BROOKS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5784-04T35784-04T3

JOHN M. BROOKS, JR.,

Plaintiff-Appellant,

v.

MARY K. BROOKS,

Defendant-Respondent.

_____________________________________________________________

 

Argued June 14, 2006 - Decided July 17, 2006

Before Judges Wefing and Coburn.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Morris County.

Thomas D. Baldwin argued the cause for appellant

(Budd Larner, attorneys; Mr. Baldwin and

Christina M. Reger, on the brief).

Joseph C. Perconti argued the cause for respondent

(Perconti & Cook attorneys; Mr. Perconti and

Patricia J. Cistaro, on the brief).

PER CURIAM

In this post-judgment matrimonial case, plaintiff appeals from an order requiring him to pay defendant $146,000 as his share of counsel fees and expert fees incurred by the parties from the inception of the divorce proceedings through March 1, 2002.

The parties were married in 1984 and divorced by a judgment entered on June 10, 2003, but the relevant procedural history begins with the entry of a pendente lite order on March 1, 2002, which in relevant part addressed the issue of counsel and expert fees as follows:

1. Each party will assess his/her economic situation so that [defendant] will be able to provide liquid assets of approximately $400,000 and [plaintiff] will be able to provide liquid assets of approximately $100,000 as quickly as possible. The $500,000 fund will pay expert and attorney's fees in arrears. Any remainder will be equally divided between the attorney/expert teams as retainer for trial.

. . . .

3. Upon [defendant's] entering into a contract for the sale of her home, the court will review the $400,000/$100,000 split on an equitable basis. . . .

The case was assigned for trial to another judge, who issued an opinion on June 10, 2003, resolving all issues except the parties' request for counsel and expert fees. On July 23, 2003, the trial judge filed an opinion on that subject, which included these statements:

Both sides submitted affidavits of service; the defendant's law firm failed to address the factors set forth in R. 5:3-5 and the other applicable rules.

Neither side mentioned that there was a court order entered on March 1, 2002 directing the plaintiff and the defendant to pay all expert and counsel fees in arrears as of that date and to use the balance as a retainer fee. Plaintiff was to contribute $100,000 and defendant $400,000 to these outstanding charges. The court was to review the split on an equitable basis when defendant entered into a contract for the sale of her home. It does not appear as though that was done.

. . . .

This court finds that the shares of each party in the payment of fees as directed by the court in March 2002 was fair and equitable. It took into account the differences in the parties' income and assets when that difference was the greatest. It allowed for both sides to retain experts and to pay those experts so that both sides would have all of the information they needed [to reach a settlement]. Unfortunately, that settlement did not take place . . . [and] as a result, significantly more fees were generated.

The judge then provided for payment of outstanding expert fees of $84,417.74 by having plaintiff pay one-quarter and defendant three-quarters, but ruled that "[a]s to counsel fees, each party shall bear its own costs and fees." No party submitted an order to the judge with respect to this opinion, and no order appears in the record.

On July 24, 2003, plaintiff filed a notice of appeal from the judgment entered on June 10, 2003. His notice included this statement about fees:

However, the Trial Court's accompanying written decision directed the parties to submit position papers on the remaining open issue concerning the Court's award of counsel and expert's fees. As of today's date, the Trial Court's decision on fees has not been received. If necessary, a motion for a limited remand on the issue will be filed.

While the appeal was pending, plaintiff filed a motion to enforce litigant's rights with respect to some aspects of the June 10, 2003, judgment and with respect to the trial judge's "supplemental decision concerning an award of counsel and expert fees dated July 23, 2003." The relief sought and granted in part by an order filed on July 23, 2004, had nothing to do with the fees accrued as of March 1, 2002.

On October 19, 2004, while the appeal from the July 10, 2003, judgment was still pending, defendant filed a motion to enforce litigant's rights, seeking, among other things, an order directing plaintiff to pay his "20% portion of legal and expert fees, paid prior to and through the March 2002 Court Order, in the amount of $148,219.63." On December 3, 2004, the trial judge entered an order which, among other things, put off resolution of the fee-sharing issue pending receipt of further documents and a transcript of the July 23, 2004 proceedings. The order included this statement:

If the court is satisfied that the issue was previously addressed, defendant's application for consideration of this issue will be denied. If the issue was not addressed, the court will convene additional proceedings as may be necessary.

And on December 10, 2004, the trial judge filed a written opinion, which concluded with the statement that the issue remains open and "upon the request of the parties, with appropriate proofs, the court will address the issue . . . ."

We affirmed the June 10, 2003, judgment. John M. Brooks, Jr. v. Mary K. Brooks, A-6218-02T5 (App. Div. Jan. 19, 2005). On February 7, 2005, defendant filed the subject motion to enforce litigant's rights, asking, among other things, that judgment be entered against plaintiff in the amount of "$148,193.31 for Plaintiff's 20% portion of [all] legal and expert fees."

Since the trial judge had retired, the issue was submitted to another judge. He described the pendente lite order of March 1, 2002, as "allocating 80/20" the sharing of the fees up to that date. He then noted the trial judge's finding "that the shares of each party and the payment of fees as directed by the Court in March 2002 was fair and equitable." He inferred that the ultimate issue, allocation of the fees, had been decided, and that his task was simply to enforce the prior decisions. He went on to find that defendant had paid a total of $740,966.56 and that plaintiff was entitled to a credit of $10,000 for a payment he had made. Applying the twenty percent to the net, he entered an order on May 19, 2005, giving defendant a judgment against plaintiff for $146,000. Plaintiff filed a motion for reconsideration on June 9, 2005, returnable on July 1, 2005. He filed his notice of appeal on July 5, 2005, before the reconsideration motion was decided. Consequently, the motion was denied in September for a lack of jurisdiction.

Some preliminary observations are in order. The judgment entered on June 10, 2003 was improper for failure to include any provisions ordering relief as determined by the judge's decision of the same date, other than the granting of the divorce. Also, defendant had no right to file a notice of appeal from that judgment because the judge had not decided all pending issues, the primary one outstanding being the request for counsel fees. Furthermore, the trial judge's decision of July 23, 2003, was never confirmed by an order. While the appeal was pending, the parties should have moved for a temporary remand to the trial court so that the order could have been entered, with the result that all issues could have been decided on the first appeal. Given these circumstances, and the promptness with which defendant moved for the relief in question after we decided the first appeal, we reject plaintiff's claim that defendant was somehow barred by laches from pursuing this aspect of the case.

Notwithstanding the trial judge's written decision of December 10, 2004, after carefully considering her decision of July 23, 2003, we are satisfied that it resolved the following issues on their merits: that defendant was entitled to receive $100,000 from plaintiff as his fair share of the fees incurred up to March 1, 2002; that plaintiff was further obliged to pay one-quarter of the then outstanding additional expert fees; and that each side was responsible for their own legal fees incurred after March 1, 2002. Thus, insofar as the last judge ordered enforcement of the $100,000 payment, he was correct, but the excess amount he awarded was inconsistent with the July 23, 2003, opinion, and is therefore set aside.

 
Reversed and remanded for entry of an order reducing the award to $100,000 plus interest from July 23, 2003, to the date of entry of the said order.

(continued)

(continued)

2

A-5784-04T3

July 17, 2006