ANITA CZUCHNICKI v. MICHAEL CZUCHNICKI


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2810-06T32810-06T3

A-1633-07T3

A-2814-07T3

ANITA CZUCHNICKI,

Plaintiff-Appellant,

v.

MICHAEL CZUCHNICKI,

Defendant-Respondent.

_________________________________

ANITA CZUCHNICKI,

Plaintiff-Appellant,

v.

MICHAEL CZUCHNICKI,

Defendant-Respondent.

__________________________________

ANITA CZUCHNICKI,

Plaintiff-Respondent,

v.

MICHAEL CZUCHNICKI,

Defendant-Appellant.

__________________________________________________


Submitted October 28, 2009 - Decided

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-095-02.

Advokat & Rosenberg, attorneys for appellant in Docket Nos. A-2810-06T3 and A-1633-07T3 and respondent in Docket No. A-2814-07T3 (Jeffrey M. Advokat, on the briefs).

Alan Jay Rich, attorney for respondent in Docket Nos. A-2810-06T3 and A-1633-07T3 and appellant in A-2814-07T3 (Mr. Rich, of counsel; Marc J. Friedman, on the briefs).

PER CURIAM

This is the second time the parties have been before us. In a prior appeal from the judgment of divorce, entered after a trial, we affirmed in all respects except we remanded for clarification about the alimony awarded in favor of plaintiff Anita Czuchnicki. Czuchnicki v. Czuchnicki, No. A-6899-03T3 (App. Div. July 26, 2006) (slip op. at 8-10). In the proceedings that followed, the trial judge dispelled the confusion about the alimony award and, in disposing of additional motions, awarded certain credits. The remand proceedings and the rulings regarding the credits generated the filing of two notices of appeal by plaintiff and one by defendant Michael Czuchnicki. We find no merit in plaintiff's appeals, but agree, in ruling on defendant's appeal, that the judge was mistaken with regard to the manner of payment of the net credit due defendant.

The parties were married for nearly thirty years when plaintiff filed this action for divorce in 2001. One child was born of the marriage. Following a contentious trial, a judgment of divorce was entered on June 29, 2004.

Plaintiff appealed and defendant cross-appealed. They raised numerous issues concerning alimony, child support, college expenses, equitable distribution, responsibility for outstanding loans, and counsel fees. We found all the parties' arguments without merit with one exception. We concluded, based on some of the comments in the judge's decision, that it was not clear whether the obligation imposed on defendant required that he pay plaintiff $4000 per month in alimony or an amount that would provide plaintiff with $4000 per month after taxes. Id. at 8-9.

Following our remand, the judge clarified the matter by expressing that defendant was only obligated to pay plaintiff a total of $4000 per month and memorialized that determination in an order entered on December 14, 2006. Plaintiff appealed (the first appeal).

Soon thereafter, cross-motions were filed. Plaintiff sought, among other things, reconsideration of the judge's earlier rulings based upon what she claimed was newly-discovered evidence. And defendant cross-moved for the disbursement of money held in escrow. The judge rejected plaintiff's request for reconsideration. He held that plaintiff did not provide newly-discovered evidence but only information that was "readily available" to plaintiff at the time of trial; moreover, the judge determined that any discrepancies in defendant's factual presentation at trial suggested by the new information were simple errors of little consequence that did not warrant reconsideration. Plaintiff appealed (the second appeal).

In disposing of the remainder of the issues presented in the parties' motions, the judge determined that plaintiff was entitled to credits totaling $18,723.84, and defendant was entitled to credits totaling $54,786.22, amounting to a net credit due defendant of $36,062.38. The judge ordered that the net credit be paid to defendant from a joint escrow fund. Defendant has appealed, arguing that the judge should have ordered that the $36,062.38 due him be paid from plaintiff's share of the escrow and not from the escrow before it was divided in half (the third appeal).

In her brief in the first appeal, plaintiff presents a single point -- "the judgment of divorce rendered in the Chancery Division needs revision" -- and then lists six items she would have us review: "alimony," "IRAs," "CM Consulting (Respondent's Business)," "Home Equity Line," "Marital Assets (Savings)," and "Counsel Fees." In her brief in the second appeal, plaintiff presents another single point -- "the judgment of divorce, as well as the post-judgment motions rendered in the Chancery Division, need revision" -- and lists again the same six items she mentioned in her brief in the first appeal.

We find insufficient merit in plaintiff's arguments in the first and second appeals to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only our chagrin that in both her appeals plaintiff has asked that we review issues finally disposed of in our opinion of July 26, 2006. Not only did plaintiff raise issues previously adjudicated in this court, but her counsel has argued those matters as if they had never been considered in the earlier appeal and without even including our prior opinion in the appendices she filed in the first and second appeals. Plaintiff's counsel was obligated to advise us of the fact that our prior opinion disposed of the issues and her counsel breached his obligation of candor to this court by attempting to revivify arguments lost in the earlier appeal in this most inappropriate of ways.

In the third appeal, defendant argues:

I. THE TRIAL COURT MISAPPLIED THE CREDITS IN DIRECTING DISTRIBUTION OF THE ESCROWED FUNDS.

II. THE TRIAL COURT SHOULD NOT HAVE AWARDED COUNSEL FEES ON THE ORDER OF JANUARY 9, 2008.

We agree with defendant's argument in Point I that the judge was mistaken in ordering the payment to defendant of the net credit from an escrow fund to which both parties held an equal interest. In so holding, the judge required that half of the net credit would come from money belonging to defendant. The judge was mistaken in this regard and should have required that the escrow fund first be equally divided and the net credit paid solely plaintiff's share of the escrow fund. We also conclude that the counsel fee award entered in favor of plaintiff must be reversed.

For these reasons, we affirm in all respects except we reverse the orders of December 7, 2007 insofar as it directed the manner in which the net credit would be paid defendant and we reverse the order of January 9, 2008 insofar as it awarded counsel fees in plaintiff's favor. We remand solely for the entry of an order that directs the payment of the entire net credit from plaintiff's share of the escrow. We do not retain
jurisdiction.

No. A-2810-06T3.

No. A-1633-07T3.

No. A-2814-07T3.

In her brief in the third appeal, plaintiff makes arguments that appear to be more logically related to either the first or second appeal. To the extent it may have been plaintiff's intention to present additional arguments regarding the first and second appeal in her brief as respondent in the third appeal, we find those arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

(continued)

(continued)

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A-2810-06T3

November 6, 2009