JEAN M. WYCKOFF v. DALE B. WYCKOFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1012-11T4

JEAN M. WYCKOFF,

Plaintiff-Respondent,

v.

DALE B. WYCKOFF,

Defendant-Appellant.

_______________________________________

June 8, 2012

Submitted May 22, 2012 Decided

Before Judges Yannotti and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. FM-12-958-10E.

Law Offices of J. Stewart Grad, attorneys for appellant (Randi S. Greenberg, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Dale Wyckoff appeals from an order entered by the trial court on September 23, 2011, which required that he pay plaintiff Jean Wyckoff $10,000 plus attorney's fees in the amount of $1530. We reverse.

This appeal arises from the following facts. The parties were married on January 4, 1999. Two children were born of the marriage. The parties divorced on January 27, 2004, although they continued to cohabit until September 16, 2009.

On November 5, 2009, plaintiff filed an action for separate maintenance, specific performance and quantum meruit relief. A stipulation of settlement was filed with the court on December 6, 2010. Section 14 of the stipulation stated that defendant would "continue to list for sale" certain properties in East Brunswick and Point Pleasant, and upon the closing of sale on either property, defendant will "pay plaintiff $80,000 from the net proceeds, subject to any credits" to which she was entitled under the stipulation.

Thereafter, plaintiff filed a motion seeking authorization to relocate with the children to California. The parties appeared in court on June 23, 2011. The trial court entered an order dated July 12, 2011, which stated that plaintiff's request to relocate was withdrawn, without prejudice. The order also stated in pertinent part:

3. The defendant still owes the plaintiff the sum of $50,000 pursuant to paragraph 14 of the December 6, 2010 Stipulation of Settlement between the parties. The defendant's attorney will transfer $40,000 to the plaintiff's attorney's trust account.

4. The parties will exchange their respective bills for credits and debits through their attorney's offices within 10 days of June 23, 2011 to determine how much of the remaining $10,000 owed to the plaintiff and being held in defendant's attorney's trust account will be paid.

On July 27, 2011, plaintiff filed a motion in the trial court to compel defendant's attorney to transfer to plaintiff $10,000 being held in his trust account, and for an award of counsel fees and costs related to the motion. In her supporting certification, plaintiff stated that section 14 of the December 6, 2010 Stipulation of Settlement required defendant to pay her $80,000. According to plaintiff, defendant had "continually procrastinated in providing this money" to her.

Plaintiff noted that the July 12, 2011 order indicated that defendant still owed her $50,000. She said that defendant's attorney had transferred $40,000 to her, as required by the order.

Plaintiff additionally stated that the July 12, 2011 order required that the parties exchange their respective credits and debits regarding the remaining $10,000, within ten days. Since that date fell on July 4, 2011, plaintiff's attorney wrote to defendant's attorney and said that the exchange should occur no later than July 5, 2011. Plaintiff stated that defendant had claimed that there were "offsets" owed to him. On July 5, 2011, plaintiff provided "proofs" which she said refuted those claims. As of July 27, 2011, defendant had not responded.

Plaintiff said that she had been left with no alternative but to file a motion to compel defendant to transfer to her the $10,000 that was being held in the trust account of defendant's attorney. Plaintiff said that defendant was withholding monies that were "rightfully due" to her and defendant "should not be rewarded for such behavior." She therefore asked the court to award her attorneys fees in connection with her motion.

Defendant opposed the motion. In his certification, defendant stated that the matter had a "sordid history." He noted that he had paid plaintiff $70,000 of the $80,000 he was required to pay her. He asserted that, under the December 6, 2010 order, plaintiff was obligated to pay $15,213.68 for real estate taxes, utility charges, insurance and the children's medical expenses. Defendant acknowledged that plaintiff had paid him $1000 toward these expenses, leaving "a balance due of $14,213.68," which exceeded the $10,000 being held in trust.

Defendant also addressed the charges that plaintiff wanted to "offset" against her obligations. These charges included bills for pet supplies, soccer school registration, medical care, a soccer club, pool supplies, and telephone charges. Defendant claimed that plaintiff had waived her right to payment of "most" of these bills, since there was nothing in the December 6, 2010 order that required a sharing of these expenses.

Defendant asserted that plaintiff's motion should be denied and his obligations under paragraph 14 of the December 6, 2010 order deemed satisfied. He also asked that a judgment be entered against plaintiff for any sums owed by plaintiff in excess of the $10,000 credit.

Plaintiff filed another certification in support of her motion. She noted that she had complied with the July 12, 2011 order and provided defendant with her bills for credits and debits. She stated that she did her "job" but defendant "just ignored" her and did not respond to her attorney's letters. Plaintiff said that defendant had not provided any request for credits until he opposed her motion. She noted that defendant had submitted bills incurred after she filed her motion, and defendant had not provided her with the bills.

The judge placed his decision on the record on September 23, 2011. The judge noted that defendant owed plaintiff monies, subject to certain offsets. The judge stated that "forty or fifty thousand dollars" was being held in defendant's attorney's trust account. The judge had ordered all but $10,000 turned over to plaintiff. The judge said that he "gave a very specific deadline" for defendant to turn over his proofs "or, if he didn't do it to . . . turn the money over."

The judge stated that, by mutual agreement, the parties had extended the time to exchange their respective bills for credits and debits to July 5, 2011, but defendant had not submitted anything. Plaintiff then filed her motion to compel payment of the $10,000, and defendant had opposed the motion by arguing that he was entitled to certain credits. The judge stated that

what [defendant] doesn't tell me is why he . . . waited until this opposition to file the information that was clearly readily available to him within the time period originally ordered by the court or if not, why he didn't file a motion explaining that to me and asking for an extension, I consider this to be bad faith on his part, especially given the history of this particular litigation before this [c]ourt. . . . I ordered something to be done, it wasn't done. No explanation has been offered as to why it wasn't done in a timely fashion. In fact, it was only done when [defendant] knew when he was faced with having to turn over the money. As I said that's bad faith on this part. I'm not going to, under these circumstances[,] allow him the ability to manipulate this . . . matter as he's obviously seeking to do and I'm going to order that the money be turned over.

The judge entered an order dated September 23, 2011, which granted plaintiff's motion to compel defendant's attorney to transfer $10,000 from his trust account to plaintiff. The order stated that this was "due to [d]efendant's failure to comply." The order also granted plaintiff's motion for counsel fees and costs, and ordered defendant to pay $1530 within thirty days. This appeal followed.

Defendant argues that the trial court's failure to consider his proofs on the merits constituted reversible error; the record is devoid of any evidence of bad faith on his part; and the matter requires a plenary hearing to determine the amounts due and owing to both parties.

We are convinced from our review of the record that the trial court erred by ordering defendant to turn over the $10,000 that his attorney was holding in his trust account. In his decision, the judge stated that in the July 12, 2011 order, he had imposed a strict deadline for the parties to exchange their respective debits and credits.

The judge said that he had required defendant to turn over the $10,000 if he failed to provide his debits and credits by the deadline. While the judge had imposed a strict deadline, the July 12, 2011 order does not state that defendant would be required to pay plaintiff $10,000 if he failed to provide his bills for credits and debits by the deadline. Indeed, the order merely required the exchange of bills for credits and debits and does not state the consequences that would result if the parties could not agree on the amount that defendant would be required to pay.

Thus, the appropriate relief for defendant's failure to comply with the court's July 12, 2011 order was not an order requiring defendant to turn over the $10,000 but rather an order requiring defendant to comply with the order. The court should have ordered defendant to do what the July 12, 2011 order required him to do, specifically, exchange his bills for credits and debits through his attorney.

As we noted previously, the trial court also awarded plaintiff $1530 in counsel fees. The award of attorney's fees is committed to the discretion of the trial court. R. 5:3-5(c) (allowing an award of counsel fees for "enforcement of agreements between spouses"). In awarding fees, the court is required to consider, among other factors, the parties' "financial circumstances"; their ability "to pay their own fees or contribute to the fees of the other party"; "the reasonableness and good faith of the positions advanced by the parties"; and "the results obtained". Ibid.

Here, the judge found that defendant acted in bad faith by failing to comply with the court's July 12, 2011 order and by failing to provide any explanation for his failure to do so. The judge did not, however, address the other factors the court is required to consider when awarding counsel fees and costs. The court also did not explain whether the amount it awarded was reasonable.

Accordingly, we reverse the court's order of September 23, 2011. Since defendant belatedly complied with the July 12, 2011 order, by providing his bills for credits and debits, the matter is remanded to the trial court to determine whether the amount owed to plaintiff can be determined based on the information exchanged by the parties. If not, the court shall conduct a plenary hearing to resolve that issue.

On remand, the court shall also reconsider its award of counsel fees and costs to plaintiff for her motion to compel compliance with the July 12, 2011 order. If the court elects to award plaintiff attorney's fees and costs for that motion, the court shall make appropriate findings of fact, addressing the relevant considerations under Rule 5:3-5(c).

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.