JOSEPH DANON v. BETHE DANON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2062-08T32062-08T3

JOSEPH DANON,

Plaintiff-Appellant,

v.

BETHE DANON,

Defendant-Respondent.

________________________________________________________________

 

Submitted November 10, 2009 - Decided

Before Judges Carchman, Parrillo and

Lihotz.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Essex County, Docket No. FM-07-284-06.

Budd Larner, P.C., attorneys for appellant

(Steven M. Resnick, on the brief).

Lum, Drasco & Positan, L.L.C., attorneys

for respondent (Gina M. Sorge, of counsel

and on the brief).

PER CURIAM

Plaintiff Joseph Danon appeals from two orders of the Family Part ordering him to pay an outstanding bill due and owing to defendant Bethe Danon's forensic expert Kalman Barson as well as counsel fees related to the motions to compel such payment. While we conclude that plaintiff is responsible for the balance of expert fees and further that he may be responsible for counsel fees, we reverse and remand to the motion judge for further hearing and findings on the issues in dispute.

This was a contentious divorce marked by an overabundance of motions followed by innumerable motions for reconsideration. During the pendency of the resolution of the issues that are the subject of this appeal, the first motion judge recused himself from further involvement in the litigation and then retired from the bench. The succeeding motion judge made certain assumptions regarding the former judge's findings. Those assumptions provide the underpinnings of this appeal. In this regard, we present a short summary of the facts relevant to the issues before us.

Plaintiff and defendant were divorced pursuant to an April 25, 2007 judgment. This judgment was later modified by an Amended Judgment of Divorce (AJOD), memorialized by the court on July 30, 2007. The AJOD incorporated the parties' Property Settlement Agreement (PSA).

Pursuant to the AJOD, the parties agreed that they would equally divide the net proceeds of the sale of a piece of commercial property "subject to credit that may be related to other issues in this matter." This commercial property had been sold for $715,000. After certain monies were distributed for professional fees and child-care related costs, the remaining amount, held in escrow, amounted to approximately $109,000.00.

A toy collection was disposed of with plaintiff retaining title and interest in the toys, and defendant receiving $100,000, to be paid in three installments of $33,333; the first to be paid on April 6, 2006, the second one year after that and the third one year after that. Plaintiff did not pay any monies on account of this obligation asserting that payment would be made "after the issues of alimony and professional fees [were] resolved by agreement or court order."

In addition to making specific allocations of monies, the AJOD also documented the parties' agreements regarding timing and method of resolving the issue of professional and experts' fees. Plaintiff and defendant agreed that they would submit the determinations regarding such issues to the court.

The PSA further stated "that there [were] no other marital debts related to equitable distribution other than as specifically set forth in this agreement for which the other party may be or is liable thereon."

On August 28, 2007, defendant moved to enforce the PSA specifically seeking a release of all the escrowed funds from the sale of the commercial property. Defendant, in addition, sought $66,666.00 as payment in satisfaction of the two missed installment payments in regard to the toy collection and other relief. Defendant also submitted an application for attorneys' fees related to her "efforts to enforce the Agreement in this application." Defendant acknowledged that the divorce was essentially settled on April 23, 2007, but because of plaintiff's "acts of bad faith" and his "refusal to effectuate" the PSA, she was forced to incur additional attorneys' fees. By cross-motion, plaintiff challenged defendant and claimed certain credits.

The first motion judge did make determinations concerning fees owed to defendant's expert, Barson. Specifically, the judge directed plaintiff to pay the balance of fees owed to Barson, as plaintiff "was in a better position financially, with the disparate income, to pay that, and clearly that was good faith and that was warranted." While ordering that plaintiff was required to pay the balance of Barson's fees, the judge did not state the exact amount plaintiff was required to pay. He estimated the amount to be approximately $22,000 but declined to enter an order regarding the exact amount pending receipt of Barson's invoice. An order was entered on November 2, 2007, later amended on November 26, 2007, including among other provisions, plaintiff's obligation to pay the expert fees.

Plaintiff filed a notice of motion to correct the November 26, 2007 order. However, prior to the date of scheduled argument on the motion, the motion judge retired, and the matter was transferred to a new judge.

Plaintiff stated that he received Barson's invoice on November 20, 2007. This invoice indicated that Barson was owed a total sum of $42,662.00 for the services he rendered to defendant, and that as of that date, the amount still due was $22,199. Reportedly, Barson continuously sent letters demanding payment, and plaintiff, due to "mounting pressure from Barson[,]" paid him $16,853 on December 27, 2007. Plaintiff then claimed in a letter addressed to Barson that the outstanding amount of $5,346 ($22,199 - $16,853) "should be paid from the funds distributed to [defendant] that she ha[d] not forwarded to [him] as per [his] billing records." Plaintiff requested Barson contact defendant for the remaining balance.

Plaintiff then asserted that after sending Barson a check for $16,853, a more careful review of Barson's invoice revealed that plaintiff had in fact overpaid. Specifically, plaintiff asserts that the estimated amount of $22,000 that the original judge had identified during the October 10, 2007 hearing was incorrect, as credits were not applied. These alleged credits reflected monies originally ordered to be paid by defendant to the expert. Plaintiff cited a January 2, 2007 order stating that "[t]he sum of $20,000 shall be released to each party's expert . . . ", and an earlier August 10, 2006 order providing that "the sum of $15,000 shall be released to each party's counsel to be used for each party's expert[.]" There was also a required $5,000 retainer fee that Barson's invoice failed to reflect. According to the invoice, Barson received one payment in the amount of $9,654. Plaintiff claims, therefore, that the balance owed Barson is $2,662. He now claims that he overpaid Barson $14,191.00 ($16,853 - $2,662).

After considering the motions and disputed theories, the second judge determined that while he would not order plaintiff to pay defendant any additional monies for Barson's fees, he would not give plaintiff any credit for the money he had already paid him. The judge reasoned that he could not disturb an order made by the original motion judge. He denied further relief.

He reserved determination on the issue of counsel fees but directed both parties to submit counsel fee requests in writing to be decided on the submitted papers. He also directed that the parties' fee applications were to cover only those fees directly related to the motions filed by the parties before him and not for fees incurred as a result of any motions presented before his predecessor. Following the submission, he ordered that plaintiff pay defendant $7,500 in attorneys' fees, concluding that plaintiff was in a better financial position to pay. Motions for reconsideration were unsuccessful, and this appeal followed.

We focus our consideration of this appeal on the narrow issue of whether the second judge was bound by the determination of the original judge as to the quantum of Barson's fees that were the responsibility of plaintiff. We answer this in the negative. In his decision ordering plaintiff to be responsible for the balance of Barson's fees, the original motion judge made no determination as to the quantum of the fees. Nor did he make any determination as to the alleged credits that may have been due and owing to plaintiff for monies previously allocated for retention of the expert. The judge did not have Barson's invoice before him and speculated as to the amount that was due.

The second judge was not bound by the speculative nature of the outstanding obligation. While we are skeptical of the belated claims of credits that might reduce the amount due, as well as the asserted basis of the $16,000 payment, on remand, the judge should consider the various positions of the parties as to the amount due Barson as well as any claims of credits that may be relevant to that determination.

The second judge was not obligated to accept the ambiguous quantum of expert fees. See Southport Dev. Group, Inc. v. Twp. of Wall, 295 N.J. Super. 421, 429-30 (Law Div. 1996) (discussing the "law of the case" doctrine, which discourages relitigation of un-reversed decisions made during the trial, is not applicable when the earlier decision was either ambiguous or uncertain), (citing State v. Reldan, 100 N.J. 187, 203 (1985), aff'd 310 N.J. Super. 548 (App. Div.), certif. denied, 156 N.J. 384 (1998). See also, State v. Munoz, 340 N.J. Super. 204, 220 (App. Div. 2001) (stating that the "law of the case" doctrine is always discretionary, and the court is never irrevocably bound until a final decision is rendered).

As to the issue of counsel fees, while we have no issue with the quantum or obligation imposed on plaintiff to pay counsel fees, we are constrained to vacate that order pending the ultimate resolution of the Barson obligation. We do so because the judge's findings as to counsel fees were, in good measure, a function of the nature and resolution of the motion practice before him. After consideration of the various claims on remand, he may choose to alter the fee award - either increased or reduced. The ultimate determination as to fees should abide the decision on remand.

Finally, plaintiff argues that we should assume original jurisdiction to resolve the extant issues. We decline to do so. We may exercise such original jurisdiction as is necessary to the complete determination of any matter on review. R. 2:10-5. See also N.J. Const. art. VI V, par. 3, (authorizing the exercise of original jurisdiction "as may be necessary to the complete determination of any cause on review.").

The decision to exercise original jurisdiction is discretionary. We certainly will not exercise original jurisdiction where the rhetoric asserts, as here, that one of the parties is "lying." On remand, the motion judge may well determine that testimony is necessary to resolve factual disputes, a circumstance particularly unsuitable for the assumption of original jurisdiction. See Pressler, Current N.J. Court Rules, comment on R. 2:10-5 (2009) (observing that "it is clear that resort [to original jurisdiction] by the appellate court is ordinarily inappropriate where further fact-finding is necessary in order to resolve the matter).

 
We reverse and remand to the Family Part for further consideration of the expert and counsel fees consistent with this opinion. We do not retain jurisdiction.

See DeNike v. Cupo, 196 N.J. 502, 520 (2008).

The disbursement of escrowed monies from the sale of the commercial property is not before us. However, as this was extensively discussed in the briefs, we set forth the relevant facts. It appears the parties settled the issue regarding the escrow monies.

The toy collection, again while not before us on appeal, was also discussed in length in both parties' briefs, and it, too, is mentioned by way of background.

(continued)

(continued)

10

A-2062-08T3

December 18, 2009