MATTHEW GOODWIN v. DONNA GOODWIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MATTHEW GOODWIN,

Plaintiff-Appellant,

v.

DONNA GOODWIN,

Defendant-Respondent.

__________________________

November 4, 2016

Submitted September 20, 2016 Decided

Before Judges Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FM-14-0632-07.

The DeTommaso Law Group, L.L.C., attorneys for appellant (Michael J. DeTommaso and Andrew M. Shaw, on the brief).

Michele R. Hart, attorney for respondent.

PER CURIAM

Plaintiff Matthew Goodwin appeals from five July 10, 2015 post-judgment family enforcement orders. We affirm.

To put the orders on appeal in the proper context, we find it necessary to review the lengthy history of this contentious divorce action, an action handled by several different family judges both before and after arbitration. The parties were married in 1987 and had three children born in 1989, 1991 and 1995. In November 2006, plaintiff filed for divorce from defendant Donna Goodwin. In January 2007 the Family Part entered orders directing plaintiff to pay pendente lite support. The following month the court found plaintiff in violation of litigant's rights for failing to make payments to defendant in the amount of $4,753 per month.

In June of that year the Family Part entered an order stating: "Plaintiff is in violation of litigant's rights due to his repeated and willful refusals to comply with the Court's January 5 and February 28, 2007 Orders and is sanctioned $1,000 for his failure to comply with those Orders." In its accompanying statement of reasons, the court found: "Plaintiff has thumbed his nose at the Court's orders as if they are trifles that do not concern him. He is mistaken." The court concluded despite plaintiff's assertions concerning his "drop in income" that his "conduct [was] inexcusable and contemptuous." In two June 2007 orders the Family Part relieved plaintiff s counsel and directed plaintiff to pay defendant's counsel fees in the amount of $5,000.

In April 2008 the Family Part entered a final judgment of divorce from bed and board,N.J.S.A. 2A:34-3(a). The parties agreed to submit the issues of alimony, child support, equitable distribution, counsel and expert fees, and all other incidental issues, to arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:24A-1 to 11. Their arbitration agreement provided that "[t]he award of the arbitrator shall be incorporated and be part of the judgment of divorce and shall be enforceable as" a court judgment. It also allowed the parties to choose an attorney to serve as the sole appellate "judge" from the arbitrator's decision, whose appellate decision would be final and binding upon the parties.

In October 2008 the Family Part entered an "Arbitration Award of Advance Equitable Distribution," directing plaintiff to pay defendant's counsel the sum of $160,000 drawn from plaintiff's Charles Schwab SEP Account.

In May 2009 the arbitrator rendered a twenty-one-page letter opinion addressing the financial issues. He calculated plaintiff's annual gross income at $160,000 and defendant's at $72,800, and required plaintiff to pay child support of $320 per week. He awarded defendant alimony of $2,700 per month for a period of fifteen years beginning June 1, 2009. He also granted defendant's request for reimbursement for payments of items that were the obligation of plaintiff pursuant to the previous pendente lite order. Although the arbitrator rejected most of plaintiff's requests for Mallamo1 credit, he did agree with plaintiff that "the pendente lite Order should have made him responsible for the Schedule A & B expenses only."2 The arbitrator awarded defendant a counsel fee of $100,000 to be paid from plaintiff's share of the Schwab SEP account funds, noting plaintiff's "continual failure to pay essential obligations of defendant and the children, such as mortgage payments, health insurance, and the electric bill." The arbitrator made other rulings, such as distribution of marital assets, insurance payments, tax responsibilities, all of which were memorialized in a July 21, 2009 final arbitration award (FAA), and incorporated in an October 14, 2009 order.

Without seeking a stay, plaintiff appealed from the July 2009 FAA to the agreed-upon appeal "judge," arguing that the arbitrator had abused his discretion. Almost five years later the arbitrator was affirmed in all respects by the appellate-arbitrator. Defendant certified she did not receive the money awarded to her in the 2009 FAA during the arbitration appeal.

The marital home was sold in October 2009, and the parties entered into an agreement to hold the proceeds in escrow. Several other orders were issued during the pendency of the FAA appeal. On April 15, 2013, the Family Part entered an order denying plaintiff's request to modify his child support and alimony payments, and directing plaintiff to provide defendant with his current address and to stop ignoring defendant s phone calls. In the court's statement of reasons, it emphasized that plaintiff "has consistently violated Court Orders and, therefore, the Court holds Plaintiff in violation of litigant's rights . . . ." Because plaintiff's alimony and child support arrears totaled $26,637.32 as of April 11, the court directed plaintiff to pay $2,400 in child support arears within seven days or be subject to sanctions. Defendant certified that plaintiff failed to comply with this directive, did not provide her with his current address and continued to block her communications.

In a September 30, 2013 order, the Family Part again denied plaintiff's request to modify his alimony obligations; the order also emancipated the two adult children. In its statement of reasons, the court addressed plaintiff's contention that he was "being eliminated from his industry and thus he will not have the same earning power as he previously did," by rejecting his contention that his income had decreased. Moreover, "[i]n recognition of Plaintiff's continued failure to comply with this Court's Orders and Plaintiff's claims that he is unable to pay alimony, child support, the retainer fee or any monetary sanctions, the Court finds it equitable that $29,107.32 be released from the Superior Court Trust Fund [(Fund)] to Defendant." In addition, the court noted that plaintiff failed to pay sanctions of $1,000 within twenty days as required by the Family Part's April 15, 2013 order.

At oral argument on July 30, 2014, plaintiff requested that the court order the total amount of money being held in the Fund be paid to the U.S. Department of Treasury and the New Jersey Division of Taxation to satisfy the parties' tax debt; that the court grant plaintiff a $68,408.79 Mallamo credit; and that the court bar any further disbursements from the Superior Court escrow account pending a plenary hearing to determine the credits due for payment of federal and state taxes and his Mallamo credit. While plaintiff's requests were pending, defendant, without counsel, requested emergent release of funds from the parties' escrow account to pay their son's tuition; the court granted defendant the sum of $1,748 in an August 6, 2014 order.

In a September 9, 2014 order, plaintiff's requests were denied, and the Family Part reiterated that "many of Plaintiff's underlying arguments in his present Cross-Motion again seek to litigate decisions made by [the arbitrator] as affirmed by [the appellate arbitrator]." Defendant's various requests, submitted by her without counsel, were also denied, and the court ordered that "[b]oth parties are directed to comply with the [FAA]." At that time the court noted that plaintiff certified his income was more than $100,000. Plaintiff was self-employed and had the ability to manipulate his stated income.3 He did not agree with the income originally imputed to him by the arbitrator.

At oral argument on February 13, 2015, defendant again requested that his alimony and child support be modified due to a substantial change of circumstance, because "the economy and changes in the industry have decimated his earning potential." In an April 1, 2015 order, the Family Part appointed a forensic accountant to value all of plaintiff's business interests and to assess plaintiff's true income and review his claimed business expenditures; plaintiff was directed to pay the accountant s retainer no later than April 15, 2015. The court noted that there were "too many unknowns" at that juncture to make further adjustments without the accountant s findings. The court was particularly "troubled by Plaintiff's repeated failure to abide by prior Court Orders and the FAA, as well as his failure to adjust his personal living expenses to assist in paying his financial obligations to Defendant." Defendant certified that plaintiff paid $3050 monthly in rent and parking in Hoboken. The court found plaintiff in violation of litigant's rights for failing to pay child support and alimony as ordered and for failing to comply with previous court orders. The court granted defendant's request that plaintiff provide proof of a term life insurance policy with defendant as beneficiary pursuant to the FAA no later than April 15, 2015. The court also ordered plaintiff to submit records related to his Schwab SEP account, including deposit records, transaction details, and statements setting forth dividends and interest from January 1, 2009 to date by April 15, 2015.

On April 22, 2015, defendant now represented by counsel filed a motion in which she sought reconsideration of the April 1, 2015 order and requested the release of Fund proceeds to satisfy the sums granted to her by the FAA in the amount of $96,584.38 plus interest. Additionally, defendant requested that plaintiff be adjudicated in violation of litigant's rights due to plaintiff's unlawful removal of the money held in his Schwab SEP account and his persistent and repeated refusal to disclose the whereabouts of these funds. In opposition, plaintiff admitted: "The funds previously held at Charles Schwab had to be relocated due to a threat from the Internal Revenue Service to seize the assets as a result of Defendant's prior motion." (Emphasis added).

The court first noted that all of plaintiff's requests had been previously denied and "[t]here's no indication as to why [the court] erred in those prior orders." The court pointed out plaintiff's bad faith and unclean hands, and noted "plaintiff is in violation of litigant's rights for improperly removing sums previously held at the Charles Schwab [SEP account] and refusing to disclose the whereabouts. He's got until July the 17th or a bench warrant is going to be issued for his arrest." He was also found in violation of litigant's rights for failing to produce all records; for failing to comply with the life insurance directive; for failing to provide his current address; for failing to respond to defendant's text messages; and failing to comply with the directive to retain the court-appointed accountant. Ultimately, the court concluded by awarding defendant the monies from the parties' Fund, stating that in light of plaintiff s long history of failure to comply with court orders, it was the only way to provide the much-needed funds to defendant.

Following argument, the court entered five July 10, 2015 orders. The parts of these orders relevant to this appeal directed the release to defendant of the $96,584.34 that remained in the Fund to satisfy, in part, the sums awarded to her in the 2009 FAA. In addition, plaintiff was ordered by a certain date in July to: (1) disclose the whereabouts and details and provide an accounting of the sums previously held at Charles Schwab from January 1, 2009, to date; (2) provide proof of life insurance in the amount of $100,000 with a child as beneficiary and defendant as Trustee, and a $400,000 policy with defendant as beneficiary; and (3) provide proof he retained the court-designated-accountant, or his application for modification of alimony and child support obligations would be dismissed.

Plaintiff argues on appeal that the motion court failed to issue appropriate findings of fact and conclusions of law, the distribution of the funds maintained in Fund was error, and the motion court erred by dismissing plaintiff's request to modify support for failure to retain a forensic accountant.

We accord deference to the Family Part's fact-finding because of the court's "special expertise" in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). The court had considered many motions filed by the parties and reviewed the motions filed before prior Family Part judges.

We owe no special deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A reviewing court is compelled to reverse if the trial court abused its discretion, failed to consider all the controlling legal principles, or reached a determination that "could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). Furthermore, "[t]rial judges are under a duty to make findings of fact and to state reasons in support of their conclusions." Heinl, supra, 287 N.J. Super. at 347; R. 1:7-4(a).

The orders of July 10 contain a written provision with "[r]easons placed on the record this date and as supplemented by this Court's prior Orders, including but not limited to the Orders of April 1, 2015; Dec[ember] 24, 2014; September 9, 2014; and April 15 2013, which are incorporated herein." Given the extensive discussions that took place on the record, as well as the court's prior orders (and accompanying comprehensive statements of reason), sufficient findings were placed on the record.

Although the parties had agreed that the Fund would not be invaded, given plaintiff s failure to pay his debts to defendant and his secreting of the Charles Schwab SEP account from defendant as well as the IRS, the court stated that it was not confident that defendant would "ever see any money [from plaintiff] as a result of this proceeding." The motion court exercised the equity powers inherently possessed by a Family Part judge in directing the disbursement of funds after plaintiff failed to abide by the arbitration agreement even after his arbitration appeal was fruitless. See Carr v. Carr, 120 N.J. 336, 351 (1990).

Plaintiff raises the "law of the case" argument to no avail. The law of the case doctrine "should be applied flexibly to serve the interests of justice." State v. Reldan, 100 N.J. 187, 205 (1985). When a litigant continues to thwart the orders of the court, the law of the case doctrine is not intended to prevent the court from exercising more severe measures it initially rejected at a time when the need for such extreme measures did not exist.

Plaintiff next argues that the trial court's dismissal of his request to modify his support obligations in its July 10, 2015 order was in error because the court previously recognized both prima facie evidence of changed circumstances and disputed material facts, which required resolution by way of a plenary hearing. This argument has great surface appeal, in spite of the contumacious behavior of plaintiff. Usually once a prima facie case of changed circumstances has been established, "a hearing is necessary." Lepis v. Lepis, 83 N.J. 139, 159 (1980). The court stated there were too many unknowns at that juncture, given plaintiff s lack of credibility and his unwillingness to accept the findings of the arbitrator, appellate arbitrator or the court, to make further adjustments without a neutral financial investigation. Despite knowing that the court would not initiate a plenary hearing without this evaluation, plaintiff willfully failed to comply with the April 1, 2015 order requiring plaintiff to retain the accountant by April 15, 2015. Given more time, plaintiff failed to comply with the July 10 order giving him until July 17, 2015 to retain the court-appointed accountant, nor did he suggest another neutral accountant he would rather hire.4 We see no clear abuse of discretion in dismissing plaintiff's current claim for modification of support after his failure to comply with court orders.

Plaintiff had funds available to pay the accountant; the funds he withdrew from the Schwab SEP account to keep the IRS from reaching the money, not to mention the funds he used to retain counsel while defendant frequently represented herself in court. Plaintiff admitted secreting the funds from the Schwab SEP account. He did not reveal its location to defendant or the court despite being ordered to do so. He also failed to reveal his home address, where he had his home office, and did not respond to electronic messages from defendant concerning the children. In this unusual circumstance, where plaintiff demonstrated utter disregard for the court, it did not represent an abuse of discretion for the court to require plaintiff to retain a neutral accountant to review his finances before holding a hearing as to changed circumstances. Neither was it an abuse of discretion for the court to invade the Fund in light of plaintiff s complete unwillingness to provide defendant with court-ordered funds.

Affirmed.

1 Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995) ("[P]endente lite support orders are subject to modification prior to entry of final judgment and at the time of entry of final judgment.")

2 See Rule 5:5-2 requiring that "in all contested family actions" a case information statement list Schedule A: "shelter" expenses and Schedule B "transportation" expenses, and Schedule C, "personal" expenses. Pressler & Verniero, Current N.J. Court Rules, Appendix V-D to R. 5:5-2 at www.gannlaw.com (2016).

3 In the April 1, 2015 order the court noted that "[p]laintiff is an independent contractor engaged in medical sales with various medical providers to sell their devices."

4 In a May 2015 cross-motion, plaintiff sought to pay half of the neutral accountant's fees without prejudice pending the outcome.