SHERYL BLOYD v. LEE BLOYD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6369-04T56369-04T5

SHERYL BLOYD,

Plaintiff-Respondent,

v.

LEE BLOYD,

Defendant-Appellant.

___________________________________________________________

 

Argued August 22, 2006 - Decided August 29, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1111-01.

Lee Bloyd, appellant pro se.

Mark Ferraz argued the cause for respondent (Vastola, Fackelman & Sullivan, attorneys; Dennis M. Fackelman, on the brief).

PER CURIAM

Defendant, Lee Bloyd, appeals that portion of the Family Part's June 20, 2005 order denying reconsideration of the Family Part's April 22, 2005 order, which denied a post dual final judgment of divorce credit against equitable distribution of the parties' marital home for money defendant claims plaintiff, Sheryl Bloyd, allegedly unilaterally withdrew from a joint home equity line of credit, secured by a second mortgage on the martial premises. Defendant also appeals the award of attorney fees in the April 22, 2005 and June 20, 2005 orders in favor of plaintiff. We affirm.

After a trial on all issues in April 2002, an amended dual final judgment of divorce was entered and filed May 15, 2002. Paragraph 9 provided that when the marital residence was sold, each party was to divide equally the net equity.

In February 2004, defendant filed a post judgment motion under Rule 4:50-1(b) and (c), seeking a credit in his favor against the equitable distribution of the net equity in the marital residence ordered in the dual final judgment of divorce. Defendant argued that newly discovered evidence, in the nature of a credit union fax, which defendant claims surfaced August 1, 2003, fifteen months after the divorce trial established that plaintiff removed approximately $7,200 from a home equity account, which the court in a pre-divorce order had required to be frozen.

In a statement of reasons attached to the Family Part's March 12, 2004 order, the judge addressed the contentions of the parties and denied defendant's request for relief because, "This is an issue raised at trial and cannot be raised again at this time."

Defendant, in April 2005, filed a motion for reconsideration of the March 12, 2004 order, with respect to the denial of a credit against plaintiff's share of equitable distribution as a result of plaintiff's withdrawal of funds from the home equity line of credit. The judge, in an extensive statement of reasons attached to the court's April 15, 2005 order, stated:

Mr. Bloyd argues that the issues he currently brings to court in this motion were brought up during the divorce trial, but never discussed because Ms. Bloyd took funds from the equity credit line after the divorce trial and he only discovered that her share of the equitable distribution was never reduced accordingly by the amount of money she borrowed against the home equity line until approximately six months after the home was sold. Mr. Bloyd contends that after their divorce was finalized, Ms. Bloyd was still borrowing money against the home equity line, which she never repaid and was in violation of the July 27, 2001 order freezing all accounts. Mr. Bloyd asserts that Ms. Bloyd taking funds from their home equity credit line qualifies as newly discovered evidence warranting a modification of previous court orders. He claims that the last transaction by Ms. Bloyd occurred on October 10, 2002, when the home was sold on October 7, 2002.

. . . .

Under Rule 4:49-2, motions for reconsideration must be filed within 20 days of receipt of the Order/20 days after the service of the Order. See Baumann v. Marinaro, 95 N.J. 380 (1984) (stating that the time-period for making the motion is rigid and non-relaxable). The court finds that this motion is truly a motion for reconsideration of the court's March 12, 2004 order where the court denied Mr. Bloyd's request for an accounting of the funds taken against the home equity line after June 27, 2001 because the issue was addressed in the divorce trial and he is thus barred from reasserting the same claims. Moreover, the court concludes after reading the transcript of the Judgment of Divorce trial from April 9, 2002, that Mr. Bloyd provided for the court, that the issue of monies taken from the home equity credit line by Ms. Bloyd with respect to equitable distribution was discussed multiple times including violations of the June 2001 order freezing the parties accounts, including discussions on pages 134, 136, 186, 189, 192 and 249. Although Mr. Bloyd argues that he did not discover some of the funds Ms. Bloyd took out of their home equity line until after the Judgment of Divorce on October 20, 2002, Mr. Bloyd filed the motion which resulted in the court's March 12, 2004 order with the knowledge of all claims against Ms. Bloyd for unilateral depletion of their equity credit line and the court denied Mr. Bloyd's requests at that time. Therefore, Mr. Bloyd's request for funds Ms. Bloyd allegedly borrowed against her home equity line to be counted against her share of equitable distribution or his reimbursement of such is denied.

The judge also expanded on his reasons for partially granting plaintiff's cross-motion for counsel fees for defending against plaintiff's reconsideration motion. He stated,

Ms. Bloyd argues that because Mr. Bloyd is merely reasserting the same claims he brought to the court in the divorce hearing as well as March 2004 motion, which were denied both times, he is acting in bad faith and should be ordered to pay the counsel fees she incurred in connection with this motion.

R. 4:42-9(a)(1) allows a trial court, in its discretion, to make an award of counsel fees in a family action. Similarly, N.J.S.A. 2A:34-23 authorizes an award of counsel fees in a matrimonial action and further requires the judge to "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties and the good faith or bad faith of either party." Williams v. Williams, 59 N.J. 229 (1971) as modified by N.J.S.A. 2A:34-23. When exercising its discretion, the court shall consider the following factors: (1) the financial ability of the party seeking the award to pay counsel fees; (2) the financial ability of the party against whom the fees are sought to pay said fees; and (3) the good faith or bad faith of the parties. Williams v. Williams, 59 N.J. 229 (1971) as modified by N.J.S.A. 2A:34-23. An award of counsel fees must always be based on findings of fact as to the reasonableness or necessity for the fees or consideration of the factors enumerated in R. 4:42-9(a)(1) or the statute N.J.S.A. 2A:34-23. Yueh v. Yueh, 329 N.J. Super. 447 (App. Div. 2000).

The court finds that Mr. Bloyd's request for a share of funds Ms. Bloyd allegedly borrowed against their home equity credit line after the parties' accounts were frozen on July 27, 2001 and thereafter until October 20, 2002, is a claim that Mr. Bloyd asserted first in the divorce hearing and then in the motion that resulted in the March 12, 2004 order. This motion essentially for reconsideration of a motion for reconsideration is in violation of R. 4:49-2 and is therefore brought in bad faith. However, Mr. Bloyd's request for a portion of the interest which accrued on Ms. Bloyd's 401K since the date of equitable distribution, was not brought before the court previously. As a result, Mr. Bloyd shall pay Vastola, Fackelman & Sullivan $800 for the counsel fees that Ms. Bloyd incurred in connection with Mr. Bloyd's request for an accounting of the monies Ms. Bloyd allegedly borrowed against their home equity credit line. Ms. Bloyd's request for Mr. Bloyd to pay the remainder of counsel fees she incurred in association with this motion is denied because she had the ability to pay.

Defendant again sought reconsideration of the judge's April 22, 2005 denial of his motion for reconsideration and award of counsel fees. The judge again denied defendant's request to reconsider its April 22, 2005 order with respect to the home equity line of credit and awarded plaintiff additional attorney fees for defending against plaintiff's motion. The judge additionally granted plaintiff's cross-motion for enforcement of litigant's rights by entering a money judgment for $1,800, representing the award of counsel fees in the amount of $800 in the April 22, 2005 order and an additional $1,000 in the June 20, 2005 order, and he attached to the June 20, 2005 order his statement of reasons for denying defendant's motion and granting plaintiff's cross-motion on those two issues.

"The scope of appellate review of a trial court's fact finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, creditable evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Additionally, the standard for obtaining a reversal of an exercise of a discretionary function in a matrimonial action is generally stated in terms of whether the trial court abused its discretion. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443 (App. Div. 1978). Our thorough review of the record convinces us that there was adequate, substantial, credible evidence in the record to support the discretionary findings made by the judge on the orders on appeal. We also are convinced that the judge properly exercised his discretion in entering the June 20, 2005 order denying reconsideration of the reconsideration order of April 22, 2005. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

Affirmed.

 

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A-6369-04T5

August 29, 2006